Sex offender passport law survives challenge

anchor_service_passportA federal judge in San Francisco has dismissed a constitutional challenge to the recently enacted International Megan’s Law, which requires specially-marked passports for registered sex offenders whose offenses involved child victims, and authorizes notification to foreign governments when they travel.  The so-called “Scarlet Letter” law is specifically aimed at stopping child sex trafficking and sex tourism, and this purpose was evidently enough to justify it even though it has a far broader effect.

In her September 23 ruling, Judge Phyllis J. Hamilton, chief judge of the Northern District of California, found that the suit was premature since the law has not yet been fully implemented, reiterating her reasoning in denying preliminary relief last spring.  But Judge Hamilton also reached out to decide the constitutional claims raised by the plaintiffs, finding each of them without merit in light of the governmental interest at stake.

At the same time, Judge Hamilton stressed that the plaintiffs had challenged the law on its face, leaving open the possibility of successful challenges to its application in specific cases down the line.  In his analysis of the decision at, Jacob Sullum suggests what such an as-applied challenge might look like:

The law covers many such offenders, including streakers, public urinators, teenagers who have consensual sex with other teenagers, and even teenagers who take nude pictures of themselves. The passport and notification provisions apply decades after the offense, whether or not the offender currently poses a threat, and notification applies even to offenders who are no longer required to register. One of the plaintiffs, who “routinely travels to Europe and Asia for business purposes,” was convicted 25 years ago. Another plaintiff, who committed a crime minor enough that he was sentenced only to probation and was initially told he would not have to register as a sex offender, will nevertheless have to carry a special passport. A third plaintiff had his 1998 conviction expunged, was reinstated as a lawyer, and is no longer listed in California’s registry but is still covered by the IML’s notification provision.

Applying the law to such individuals may seem irrational and cruel, but a facial challenge is not concerned with individual instances of injustice:

Stigmatizing these men as a threat to children everywhere for the rest of their lives may seem irrational, but that does not mean it fails the rational basis test. “Under rational basis review,” Hamilton explains, “a law ‘may be overinclusive, underinclusive, illogical, and unscientific and yet pass constitutional muster.'” Even if the IML is poorly designed to achieve its ostensible goal, Congress says it will protect children, and that’s rational enough for government work.

It remains to be seen how the law will be implemented, and whether relief or waiver provisions will be included to avoid problems of overbreadth.