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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