Registration and the right to reputation.
The late Joseph Kent Brown wrote a law review article for Florida State University, in which he wrote, “of considerable importance in our society is the right of an individual to protect his or her reputation from false, irresponsible or malicious publications.” it was an article in which he weighed the First Amendment against a private individual’s reputational interest and right to privacy.
I read the article in the context of a member’s comment asking whether registrants might have a cause of action for defamation arising from the FDLE publishing their flyer on the internet.
In Florida, to state a claim for defamation the plaintiff must allege that: (1) the defendant published a false statement; (2) about the plaintiff; (3) to a third party; and (4) the statement caused injury to the plaintiff.
My initial reaction was that we would be dead in the water at the first element. As for (2), there’s no question that the statement is about us. Not only is it about us but it has our picture, name, address and identifying marks. As for (3), there’s no question it’s made to a third party. Not only is it made to “a” third party, it’s published on the internet for anyone in the world to see. And as for (4), one doesn’t have to live with this label for very long to realize the abundance of harm it does to your employability, your relationships, your ability to travel, or your safety.
But I couldn’t get past the first element; that the defendant published a false statement. That was until I thought about it some more and read the decision from Pennsylvania last week.
On a registrant’s flyer, at the very top it says Sexual Offender Sexual Predator and immediately to the right of the picture, it says, “[NAME] is registered as a Sexual Offender.” (or Predator). That alone might not be a false statement, true that we are required to register as such, but that label carries some very false assertions which can be found in Florida Statutes. 943.0435(12) states, “The Legislature finds that sexual offenders, especially those who have committed offenses against minors, often pose a high risk of engaging in sexual offenses even after being released from incarceration or commitment”
It doesn’t take a scholar to apply some deductive reasoning to this label. The state says “sex offenders” pose a high risk of engaging in sexual offenses, [NAME] is a “sex offender”, therefore [NAME] poses a high risk of engaging in sexual offenses.
But even without individually assessing [NAME]’s risk of sexually offending, which can be easily done, the risk of reoffense is categorically low overall for “sex offenders”. The “high risk” assertion might be sufficient to satisfy element (1) – false statement on a universal basis, but certainly without any individualized risk assessment, the state is effectively saying someone is dangerous when they may not be – a false statement!
One of the biggest problems I have with the public registry is there is no opportunity for rebuttal. The state labels you a monster, the state publishes it online for everyone to see, and you have no opportunity to say otherwise. In other defamation scenarios you would have the opportunity for rebuttal or to mitigate the reputational damage. For example; you are at work and a co-worker stands up and says, “you are a thief, you stole my stapler”. You would have the opportunity to stand up and say, “no I’m not! This is my stapler, I brought it from home.”. Even if someone writes a slanderous story about you in the newspaper, you can write an op-ed. If someone writes a scathing review about your business on Google, you can respond. Or, best yet, if someone defames you on social media you can wage a “twitter war” till people lose interest.
Not so with the registry. The state calls you dangerous and there is no available response, there is no administrative procedure to dispute your dangerousness and no matter what level of repentance you engage in, there is no way to rebut the governments warning that you are high risk, even if you were not high risk to begin with. Even though it’s a total lie!
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It is interesting that one of the reasons for Judge Aileen Cannon granting Trump’s request for a special master was that releasing documents could cause undue “reputational harm” to him. We now have a federal judge in a very high-profile case warning against harming reputations. This is not a political post. I just see that as a potentially useful citation. Sauce for the goose is sauce for the gander.
I hope a good paralegal will put together a legal blueprint that others can copy and submit in their own jurisdictions for this very pernicious offense of the registries all across the nation. Likewise for the practice of some states (like Illinois) of automatically bumping up to predator status for a no-contact offense committed in another state (Like Florida, for instance) Making Level 2 and 3 offenders out of Level 1s just because they have moved out of their original state of conviction.
Phys Ed
Amen! The thing is the prosecution can write into anything they want into your record ,without you even knowing what they wrote and make up anything lies without any accountability whatsoever. When you move to another state they look at what was written and go by that instead of actually what you were convicted of. As if it were facts when all it is is lies and fabrication. Then they judge you on that instead of what really happened.
ACTUALLY on my flyer it said im convicted of xxx but i pled to attempted they never listed attempted so that is a 100% lie for #1
I found the article very interesting but the state of Florida has no intentions of changing its wording so I am sure your statement won’t go far! Just like our government & laws in Florida…the Big Shots will NEVER allow change for sex offenders nor predators as long as they label you as an repeating offender.
I’ve been reading your feeds for several years and I usually don’t comment, but I have to say this is probably one of the best things I’ve ever read published by you guys thank you very much for all your support and your help to all of us who are mistakenly labeled dangerous to society
Sorry for a little bit of a rant but get to the bottom you will understand..
If you study history it’s easy to see the future..
1) every draconian law they now employ is not new.All of them were used to terrorize others before you. either for blacks,women, heretics,witches,commies, Japanese,unmarried mothers..( you get the idea) the government will always segregate one group it will “fabricate” for abuse by itself and for society as a whole..it’s how the government protects itself from and its own crimes from exposure..They will ignore laws that don’t fit the narrative of the crime they want to commit and they will creat laws to justify their crimes..It’s the American way..
2) society loves the idea of someone to abuse as long as its not them so they are eager participants. Makes them feel better about how worthless they are if you are worth even less..Romans knew this and created colloseums and tortured and fed humans to each other and to the lions for the sport of the adoring crowds..I promise that your neighbors are no different now and maybe even less civilized..any faux excuse is enough when it’s an opportunity to abuse someone else..you think you are monsters now because society tells you so..Take heart in knowing that so did the blacks, japanese,Jews, Chinese,Irish,women,unwed mom’s,witches,and native Americans before you when society made them monsters too. Eye opening fact? Study history and watch your neighbor a little closer .you may find 95% of you are guilty of nothing more then what your neighbor didn’t get caught for or what was perfectly normal through most of human society and most countries still consider normal..(shocker huh?)..
Question for ya..Who is the real monster? The person who perhaps did something to harm another but has paid for their actions, repented,and is working to be a productive citizen or the masses whome under color of law use every excuse possible to commit worse crimes, abuse and torture to the person and any innocent associated with that person?
Easy to see society is the real monsters but they need to brand you as such so they don’t have to look in the mirror…
Until society finds someone else to demonize,terrorize and commit crimes against humanity on don’t expect a legit break…it’s been that way for the entire American history and don’t expect it to change..