In Coppolino v. Commissioner of the Pennsylvania State Police, 2014 WL 5140043, the Commonwealth Court of Pennsylvania decided that the bulk of the 2011 revised version of Pennsylvania’s Megan’s Law is neither unconstitutionally overbroad nor an ex post facto punishment. However, the court struck down the law’s in-person travel reporting requirement as applied to an individual convicted under a prior version of Megan’s Law as an ex post facto punishment. Coppolino intends to appeal to the Pennsylvania Supreme Court.
In 2001, Richard Coppolino was found guilty of involuntary deviate sexual intercourse, aggravated assault, recklessly endangering another person, unlawful restraint, terroristic threats, and intimidation of a witness. After a non-contested PCRA claim, Coppolino was eventually re-sentenced in 2007. At this point, Coppolino was required to comply with the requirements of Megan’s Law–namely that he register his personal information with the Pennsylvania State Police and undertake other related compliance measures. He dutifully complied. After the 2011 revised version of Megan’s Law was put in effect, Coppolino, as a Tier III offender due to his conviction for involuntary deviate sexual intercourse, was required to comply with new, additional requirements.
Megan’s Law IV, the name given for the 2011 amendments, requires an offender to register a wider array of information with the state police, including aliases, nicknames, internet identifiers, date of birth, social security number, and other identifying information. It also requires quarterly, rather than annual, in-person verifications. Furthermore, an offender is required to provide palm prints and DNA samples, appear in person at a registration site prior to traveling, and provide particulars regarding a trip including rental car and/or lodging information. Failure to provide these materials as specified could result in a felony conviction and a lengthy prison sentence.
Coppolino challenged the law on two grounds: (1) that changes made in Megan’s Law IV make the law more punitive than previous, upheld versions of of Megan’s Law as to render the statute an ex post facto law; and (2) Megan’s Law IV is unconstitutionally overbroad because it burdens anonymous online speech.
Ex Post Facto Laws
An ex post facto law inflicts a greater punishment for a particular crime than the law previously allowed when that crime was committed. Under the state and federal constitution, a law can be retroactively applied only if it is not “after the fact” punishment. The constitutional test for whether a law is ex post facto is whether the General Assembly’s intent was punitive, or, if the intent was not punitive, whether the law’s effect is so punitive that in can not reasonably be classified as anything else. To assist in making the determination of the law’s punitive effect, the United States Supreme Court has supplied seven factors (some of which care more weight than others):
(1) whether the sanction involves an affirmative disability or restraint
(2) whether it historically has been regarded as a punishment
(3) whether it comes into play only on a finding of scienter
(4) whether it operation will promote the traditional aims of punishment
(5) whether the behavior to which it applies is already a crime
(6) whether the alternative purpose to which it may rationally be connected is assignable for it
(7) whether it appears excessive in relation to the alternative purpose assigned.
In applying this two-part test, the court first found that legislature intended the law to be civil in nature. To make this conclusion, the court largely deferred to previous Pennsylvania Supreme Court decisions affirming that the legislature’s stated intent “to protect the safety and general welfare” and require registration “as a means of assuring public protection” was not punitive.
Applying the second part of the test, the court continued to analyze all of Coppolino’s challenged provisions using the seven factors, and held that the quarterly registration, expanded disclosure requirements, and foreign travel reporting requirements, while inconvenient, are not punitive.
Despite finding the bulk of the revised registration requirements non-punitive, the portion of the statute requiring in-person visits at specific registrations sites within three days to update any changes in temporary lodging, cell phone numbers, and/or motor vehicles was found to inhibit the ability offenders to travel freely. This provision would require a registrant to inform the state police in advance of extended travel information that might not be known or knowable prior to embarking on a trip — i.e. car rental license plates or specific hotel lodging accommodations on a given date. Failure to comply would constitute a first-degree felony.
The court believed this to be an affirmative restraint disproportionate to any public purpose it may serve. In fact, the court recognized that the three-day in-person registration requirement is more severe than similar rules placed upon parolees.
Following the Statutory Construction Act, which presumes all statutes to be severable where feasible, the Commonwealth Court indicated that the “in-person appearance” language was to be struck, while still leaving a notification of changed circumstances requirement as available through other means.
Coppolino argued that Section 9799.16(b)(1), which requires registration of internet identifiers, as overbroad as applied to him because his offense did not involve either internet or child predation, and this provision was intended to protect minors online. The court considered his argument under the premise that Pennsylvania generally limits an overbreath challenge to the First Amendment and that the overbreadth doctrine requires restrictions on rights be narrowly drawn and represent a considered legislative judgment that a particular mode of expression must give way to other compelling needs of society. Coppolino believed that his right to freely express himself anonymously on the internet was burdened by the requirement that he disclose his internet identifiers. He further argued that, as a member of a widely despised group, anonymous speech is his only avenue for speaking out on the treatment of sexual offenders.
As a novel question in Pennsylvania, the court looked to other jurisdictions considering similar provisions. While jurisdictions have split, the court distinguished two federal court decisions striking down such laws from Nebraska and Georgia as distinguishable because they required offenders to consent to computer searches and/or provide password information that could apply to ill-defined online activities well-removed from those the provisions were intended to address. Instead, the court found a decision from the 10th Circuit more apt, where statutes requiring the disclosure of internet identifier requirements were limited to situations closely related to the law enforcement purposes of combating online sexual predation. The 10th Circuit, as well as the Indiana Court of Appeals who also considered the issue, emphasized that mere disclosure to law enforcement, and not to the general public, of internet identifiers did not burden anonymous speech because the individual is not required to reveal his identity as a pre-condition to expression.
Applying this rationale to Megan’s Law IV, the court read the statute’s relevant language as prohibiting public dissemination of internet identifiers. This conclusion is questionable as the language in the law expressly requires the public dissemination of some registry information (names and aliases, birth years, home addresses, work and school addresses, photographs and physical descriptions, and vehicle license plate numbers) while disallowing others (social security numbers, travel document numbers, victim information, or arrests not leading to convictions, and other information). Internet identifiers are not included on either list. The court, taking what might be considered a step of judicial activism, read the law as providing no authority for the state police to disclose the internet identifiers. Because it read the statute this way, the court believed Coppolino’s case to be closer to that of the 10th Circuit; with no pre-condition to expression, there was no viable First Amendment overbreadth argument.