2016 IL 119563

IN THE SUPREME COURT OF THE STATE OF ILLINOIS (Docket No. 119563) THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARK MINNIS, Appellee. Opinion filed October 20, 2016. JUSTICE FREEMAN delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion. OPINION ¶1 Section 3(a) of the Sex Offender Registration Act (Registration Act or Act) requires sex offenders to disclose and periodically update information regarding their Internet identities and websites. 730 ILCS 150/3(a) (West 2014). This information is subject to public inspection as provided by the Sex Offender Community Notification Law (Notification Law or Law) (730 ILCS 152/101 et seq. (West 2014)). The circuit court of McLean County entered an order finding that this Internet disclosure provision was overbroad in violation of the first amendment to the United States Constitution. U.S. Const., amend. I. The State appeals directly to this court. Ill. S. Ct. R. 603 (eff. Oct. ^[1], 2010). We now reverse the order of the circuit court and remand the cause to the circuit court for further proceedings. ¶2 I. BACKGROUND ¶3 On December 15, 2010, the circuit court adjudicated defendant, Mark Minnis, a delinquent minor for committing the offense of criminal sexual abuse (720 ILCS 5/12-15(b) (West 2010)). 1 The court sentenced him to 12 months’ probation. Defendant’s adjudication for criminal sexual abuse rendered him a “sex offender” pursuant to the Registration Act (730 ILCS 150/2(A)(5), (B)(1) (West 2010)). Adhering to the statutory mandate (730 ILCS 150/3-5(a) (West 2010)), the court ordered defendant to register as a sex offender. ¶4 On December 17, 2010, defendant reported to the Normal police department to register. On his first sex offender registration form, defendant disclosed, inter alia, his two e-mail addresses and his Facebook account. The Registration Act required defendant to report thereafter at least once per year (730 ILCS 150/6 (West 2010)). Defendant’s May 2011 registration form listed the same Internet information.^[2] ¶5 Defendant registered again on August 29, 2014. Defendant included his two e-mail addresses on the registration form, but he omitted his Facebook account. On September 9, Normal police officers viewed defendant’s publicly accessible Facebook profile online. They observed that defendant changed his Facebook cover photo only one month prior to his August 2014 registration. On September 12, defendant was arrested and charged by information with failing to register as a sex offender pursuant to section 3(a) of the Act (730 ILCS 150/3(a) (West 2014)). On September 24, defendant was indicted for that offense, “in that he did not register an Internet site, a Facebook page, which he had uploaded content to.”

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¶6 In May 2015, defendant filed a pretrial motion to dismiss the indictment. Defendant argued that the Internet disclosure provision in section 3(a) of the Registration Act was overbroad and vague in violation of the United States Constitution. On July 7, 2015, the circuit court entered an order granting defendant’s motion to dismiss the indictment. The court rejected defendant’s argument that the challenged provision in section 3(a) was unconstitutionally vague. However, the court found that the Internet disclosure provision was overbroad in violation of the first amendment. In compliance with Illinois Supreme Court Rule 18 (eff. Sept. ^[1], 2006), the circuit court specifically found the entire Internet disclosure provision unconstitutional, both on its face and as applied to defendant, and based solely on the first amendment.^[3]

¶7 Because this provision in section 3(a) was held invalid, the State appeals directly to this court. Ill. S. Ct. R. 603 (eff. Oct. ^[1], 2010). We granted the American Civil Liberties Union of Illinois and the Electronic Frontier Foundation leave to submit an amici curiae brief in support of defendant. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). Additional pertinent background will be discussed in the context of our analysis of the issues.

¶8 II. ANALYSIS

¶9 Prior to addressing the merits of the circuit court’s finding of unconstitutionality, we must consider which part of section 3(a) of the Registration Act was properly before the circuit court. Pertinent to the instant case, section 3(a) requires a sex offender to disclose and periodically update two categories of Internet information—identities and websites—described as follows:

“all e-mail addresses, instant messaging identities, chat room identities, and other Internet communications identities that the sex offender uses or plans to

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use, all Uniform Resource Locators (URLs) registered or used by the sex offender, all blogs and other Internet sites maintained by the sex offender or to which the sex offender has uploaded any content or posted any messages or information ***.” 730 ILCS 150/3(a) (West 2014).

The circuit court invalidated the disclosure requirement for both categories.

¶ 10 A. Defendant’s Standing

¶ 11 The State contends that the circuit court “lacked jurisdiction to rule on the constitutionality” of the entire Internet disclosure provision in section 3(a). The State observes that defendant was charged specifically with failing to register his Facebook account, which is an Internet site. Therefore, according to the State, “the circuit court had jurisdiction to rule only on the constitutionality” of the Internet disclosure provision as it pertains to websites and lacked jurisdiction to declare unconstitutional the disclosure provision as it pertains to Internet identities.

¶ 12 We disagree. The State overlooks that defendant bases his facial challenge to the entire Internet disclosure provision on first amendment overbreadth grounds. The first amendment provides, in pertinent part, that “Congress shall make no law *** abridging the freedom of speech” (U.S. Const., amend. I) and applies to the States through the due process clause of the fourteenth amendment. De Jonge v. Oregon, 299 U.S. 353, 364 (1937). The assertion of a first amendment overbreadth claim is not the application of a procedural rule but is a function of substantive first amendment law. Sabri v. United States, 541 U.S. 600, 610 (2004). A state court may not avoid a proper facial attack brought on federal constitutional grounds. New York v. Ferber, 458 U.S. 747, 767 (1982).

¶ 13 Generally, a party may not raise, and a court will not consider, a constitutional challenge to a statutory provision that does not affect that party. In re M.I., 2013 IL 113776, ¶¶ 32, 34. Thus, a court will not consider a constitutional challenge to a criminal statutory provision under which a defendant has not been charged. See, e.g., People v. Blackorby, 146 Ill. 2d 307, 320-21 (1992); People v. Palkes, 52 Ill. 2d 472, 480 (1972). This traditional rule reflects two cardinal principles: the personal nature of constitutional rights and prudential limitations on constitutional adjudication. Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973).

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¶ 14 “The First Amendment overbreadth doctrine, however, represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court.” Bates v. State Bar, 433 U.S. 350, 380 (1977). “This ‘exception to the usual rules governing standing,’ Dombrowski v. Pfister, [380 U.S. 479, 486 (1965)], reflects the transcendent value to all society of constitutionally protected expression.” Bigelow v. Virginia, 421 U.S. 809, 816 (1975). As the United States Supreme Court has explained:

“We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions. [Citations.] Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech, [citation]—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.” Virginia v. Hicks, 539 U.S. 113, 119 (2003).

Therefore, in the first amendment context, courts permit attacks on overly broad statutes without requiring that the person making the attack show that his or her specific conduct was actually protected. Bigelow, 421 U.S. at 815-16 (collecting cases); People v. Holder, 96 Ill. 2d 444, 449 (1983); Village of Schaumburg v. Jeep Eagle Sales Corp., 285 Ill. App. 3d 481, 484-85 (1996) (based on first amendment overbreadth grounds, defendant charged with violating particular subsections of ordinance had standing to challenge other subsections with which defendant was not charged).

¶ 15 Of course, a person must present more than subjective allegations of a subjective “chill.” “There must be a ‘claim of specific present objective harm or a threat of specific future harm.’ ” Bigelow, 421 U.S. at 816-17 (quoting Laird v. Tatum, 408 U.S. ^[1], 13-14 (1972)).

¶ 16 In the case at bar, defendant clearly may challenge the entire Internet disclosure provision based on first amendment overbreadth grounds. As a sex offender, defendant is under a continuing obligation to disclose to authorities all of the information specified by section 3(a) of the Registration Act. That includes both Internet identities and websites. Defendant maintains and uses e-mail addresses as

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well as a Facebook account. Any failure to disclose those e-mail addresses would subject defendant to prosecution under the identity disclosure provision, just as his failure to disclose his Facebook account triggered prosecution under the website disclosure provision. In light of what happened here, the threat of prosecution from such a lapse can hardly be considered speculative. It is real and immediate. See Virginia v. American Booksellers Ass’n, 484 U.S. 383, 392-93 (1988).

¶ 17 Where a person engages in conduct arguably affected with a constitutional interest but proscribed by statute and there exists a credible threat of prosecution thereunder, that person need not risk being arrested and charged before challenging the provision under the first amendment. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298 (1979). Therefore, defendant clearly could have challenged the Internet identity disclosure provision as well as the website disclosure provision even before this prosecution was initiated. Given that defendant had standing to bring a pre-enforcement action to challenge the entire Internet disclosure provision, it would be anomalous to hold that his standing has somehow been diminished or lost now that charges have actually been filed. Nothing in first amendment jurisprudence supports such a position. Therefore, we hold that the first amendment allowed defendant to challenge the constitutionality of the entire Internet disclosure provision.

¶ 18 We observe that the circuit court specifically found that the Internet disclosure provision was unconstitutional both on its face and as applied to defendant. An “as applied” challenge requires the challenging party to show that a statute is unconstitutional as it applies to him or her. People v. Garvin, 219 Ill. 2d 104, 117 (2006). Thus, the particular facts and circumstances surrounding the challenging party become relevant. In re M.A., 2015 IL 118049, ¶¶ 39-40; Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305-06 (2008).

¶ 19 However, in the case at bar, the circuit court held no evidentiary hearing and made no findings of fact. In such a factual vacuum, a court is not capable of making an “as applied” determination of unconstitutionality. Without an evidentiary record, any finding that a statute is unconstitutional “as applied” is premature, and the constitutional challenge must be facial. People v. Rizzo, 2016 IL 118599, ¶ 26; In re Parentage of John M., 212 Ill. 2d 253, 268 (2004) (citing Reno v. Flores, 507

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U.S. 292, 300-01 (1993)).

¶ 20 B. First Amendment Overbreadth

¶ 21 We now address whether section 3(a) of the Registration Act violates the first amendment by requiring a sex offender to disclose his or her Internet identities and websites (730 ILCS 150/3(a) (West 2014)). The constitutionality of a statute is a question of law that we review de novo. All statutes are presumed to be constitutional. The party challenging the constitutionality of a statute has the burden of clearly establishing its invalidity. A court must construe a statute so as to uphold its constitutionality, if reasonably possible. M.A., 2015 IL 118049, ¶ 21; John M., 212 Ill. 2d at 265-66; People v. Malchow, 193 Ill. 2d 413, 418 (2000).

¶ 22 The first amendment right to freedom of speech includes the right to publish and distribute writings while remaining anonymous. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995); Talley v. California, 362 U.S. 60, 64-65 (1960). “Anonymity is a shield from the tyranny of the majority. [Citation.] It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.” McIntyre, 514 U.S. at 357.

¶ 23 First amendment protections for speech extend fully to communications made through the medium of the Internet. “Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. *** ‘[T]he content on the Internet is as diverse as human thought.’ ” Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997) (quoting American Civil Liberties Union v. Reno, 929 F. Supp. 824, 842 (E.D. Pa. 1996)). Thus, we agree with our appellate court that the first amendment right to speak anonymously extends to those expressing views on the Internet. Hadley v. Subscriber Doe, 2014 IL App (2d) 130489, ¶ 16; Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, ¶ 15; see also Ghanam v. Does, 845 N.W.2d 128, 137 (Mich. Ct. App. 2014); Solers, Inc. v. Doe, 977 A.2d 941, 950-51 (D.C. 2009); Independent Newspapers, Inc. v. Brodie, 966 A.2d 432, 440-42 (Md. 2009); Mobilisa, Inc. v. Doe 1, 170 P.3d 712, 717 (Ariz. Ct. App. 2007). Nevertheless, “it is well understood that the right of free speech is not

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absolute at all times and under all circumstances.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). It follows that the right to anonymous speech, including anonymous Internet speech, is not absolute. Ghanam, 845 N.W.2d at 137; Solers, Inc., 977 A.2d at 951.

¶ 24 In a typical facial challenge, a defendant would have to establish that there is no set of circumstances under which the statute would be valid. The fact that the statute could be found unconstitutional under some circumstances would not establish its facial invalidity. M.A., 2015 IL 118049, ¶ 39; John M., 212 Ill. 2d at 269. However, as earlier discussed, a facial challenge based on first amendment overbreadth is provided out of concern that the threat of enforcement of an overbroad law may chill or deter constitutionally protected speech, especially when the statute imposes criminal penalties. Hicks, 539 U.S. at 119; People v. Clark, 2014 IL 115776, ¶ 11; People v. Bailey, 167 Ill. 2d 210, 226 (1995). Yet, invalidating a law that in some of its applications is perfectly constitutional has harmful social costs. Recognizing that overbreadth invalidation is “strong medicine,” a law may be invalidated as overbroad only if a substantial number of its applications to protected speech are unconstitutional, judged in relation to the statute’s plainly legitimate sweep. United States v. Williams, 553 U.S. 285, 292-93 (2008); Hicks, 539 U.S. at 119-20; People v. Williams, 235 Ill. 2d 178, 199-200 (2009).

¶ 25 We first construe the challenged statute. A court cannot determine whether a statute reaches too far without first knowing what the statute covers. United States v. Stevens, 559 U.S. 460, 474 (2010); People v. Alexander, 204 Ill. 2d 472, 485 (2003); Bailey, 167 Ill. 2d at 226. The Registration Act and the Notification Law “operate in tandem, providing a comprehensive scheme for the registration of Illinois sex offenders and the dissemination of information about these offenders to the public.” People v. Cornelius, 213 Ill. 2d 178, 181 (2004) (citing Malchow, 193 Ill. 2d at 416). “Our primary objective in construing a statutory scheme is to ascertain and give effect to the intent of the legislature.” People v. Boyce, 2015 IL 117108, ¶ 15; see People ex rel. Scott v. Illinois Racing Board, 54 Ill. 2d 569, 577 (1973) (stating that two statutes were “part of a comprehensive statutory plan *** and their provisions should be viewed as integral parts of a whole”). The most reliable indicator of legislative intent is the language of the statute, given its plain and ordinary meaning. A court must view the statute as a whole, construing words

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and phrases in light of other relevant statutory provisions and not in isolation. Each word, clause, and sentence of a statute must be given a reasonable meaning, if possible, and should not be rendered superfluous. The court may consider the reason for the law, the problems sought to be remedied, the purposes to be achieved, and the consequences of construing the statute one way or another. Also, a court presumes that the legislature did not intend to create absurd, inconvenient, or unjust results. People v. Hunter, 2013 IL 114100, ¶ 13 (and cases cited therein).

¶ 26 The Registration Act was enacted in 1986.4 All sex offenders, as defined by section 2 of the Registration Act (730 ILCS 150/2 (West 2014)), must register in person with local law enforcement officials and “provide accurate information as required by the Department of State Police.” 730 ILCS 150/3(a) (West 2014). Prior to 2007, this information disclosed only the sex offender’s actual identity and physical whereabouts. However, a 2007 amendment expanded this information to include a sex offender’s Internet identity and websites. Pub. Act 95-229 (eff. Aug. 16, 2007) (amending 730 ILCS 150/3(a) (West 2006)). Section 3(a) currently provides in pertinent part:

“Such information shall include a current photograph, current address, current place of employment, the sex offender’s *** telephone number, including cellular telephone number, the employer’s telephone number, school attended, all e-mail addresses, instant messaging identities, chat room identities, and other Internet communications identities that the sex offender uses or plans to use, all Uniform Resource Locators (URLs) registered or used by the sex offender, all blogs and other Internet sites maintained by the sex offender or to which the sex offender has uploaded any content or posted any messages or information ***. The information shall also include *** the county of conviction, license plate numbers for every vehicle registered in the name of the sex offender, the age of the sex offender at the time of the commission of the offense, the age of the victim at the time of the commission of the offense, and any distinguishing marks located on the body of the sex offender.” (Emphasis added.) 730 ILCS 150/3(a) (West 2014).

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Further, a sex offender “shall report in person to the appropriate law enforcement agency with whom he or she last registered within one year from the date of last registration and every year thereafter and at such other times at the request of the law enforcement agency not to exceed 4 times a year.” 730 ILCS 150/6 (West 2014). With certain exceptions not relevant in this case, a sex offender must register for a 10-year period. 730 ILCS 150/7 (West 2014). A sex offender “who knowingly or wilfully gives material information required by [the Registration Act] that is false is guilty of a Class 3 felony.” 730 ILCS 150/10 (West 2014).

¶ 27 A sex offender who is subject to the Registration Act “is, in turn, also subject to the provisions of the Notification Law.” Cornelius, 213 Ill. 2d at 182. Enacted in 1995 (730 ILCS 152/101 et seq. (West 1996)), the Notification Law requires the Illinois State Police to maintain a sex offender database that identifies sex offenders and makes information about them available to the persons that the Law specifies. 730 ILCS 152/115(a) (West 2014). Law enforcement officials must disclose the above-quoted information required under section 3(a) of the Registration Act to the following county entities: institutions of higher education, public school boards, child care facilities, libraries, public housing agencies, the Illinois Department of Children and Family Services, social service agencies providing services to minors, and volunteer organizations providing services to minors. Also, the above-quoted information must be disclosed to any victims of any sex offenses, not only the victim of the sex offense for which the sex offender had been convicted. 730 ILCS 152/120(a) (West 2014) (counties except Cook County). Law enforcement officials may disclose, in their discretion, this information “to any person likely to encounter a sex offender.” 730 ILCS 152/120(b) (West 2014). For all other members of the public, this information must be made available upon request (730 ILCS 152/120(c) (West 2014)) and may be placed “on the Internet or in other media.” 730 ILCS 152/120(d) (West 2014). Further, the Illinois State Police must maintain an Internet website that makes sex offenders’ registration information available to the public. 730 ILCS 152/115(b) (West 2014).

¶ 28 However, dissemination of information regarding juvenile sex offenders is limited to any individual “when that person’s safety may be compromised for some reason related to the juvenile sex offender.” 730 ILCS 152/121(a) (West 2014). “Public information concerning juvenile sex offenders thus is much more restricted than information concerning adult sex offenders.” J.W., 204 Ill. 2d at 75. Also, if

- 10 - the juvenile sex offender is enrolled in school, the local law enforcement agency shall provide a copy of the sex offender registration form only to that school’s principal, chief administrative officer, or guidance counselor. The registration information must be kept separate from the juvenile sex offender’s other school records. 730 ILCS 152/121(b) (West 2014). Accordingly, while the registry, as it pertains to adults, “provides for wide dissemination of registration information to the public,” a juvenile sex offender’s registration information is “available only to a very limited group of people.” People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 203 (2009). Further, juvenile sex offenders may petition for termination of registration two years after their initial registration. 730 ILCS 150/3-5(c) (West 2014).5 ¶ 29 We next address whether this statutory scheme warrants first amendment scrutiny. There must be a realistic danger that the statute will significantly compromise recognized first amendment rights. Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984); Clark, 2014 IL 115776, ¶ 11; People v. Haywood, 118 Ill. 2d 263, 275 (1987) (collecting cases). If the challenged statute does not reach constitutionally protected conduct, our analysis ends. See, e.g., Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495-96 (1982); Bailey, 167 Ill. 2d at 226-28; People v. Ryan, 117 Ill. 2d 28, 33 (1987). ¶ 30 Before this court, the State contends that the Internet disclosure provision does not “unconstitutionally burden sex offenders’ First Amendment interest in anonymity.” The State observes that the disseminated disclosure information allows the public to identify the Internet forums in which the sex offender has communicated within the offender’s previous registration period, up to and including the day he or she registers. “Because section 3(a) largely requires only retroactive disclosure,” the State argues, the Internet disclosure provision does not “eliminate” a sex offender’s ability to speak anonymously online. Thus, according to the State, the prospect that the disclosure provision will deter sex offenders from speaking online “is too speculative to support defendant’s First Amendment challenge.”