Can we stop writing laws so ineffectually they become useless?

Courtesy of Wikimedia Commons
Courtesy of Wikimedia Commons

Two years ago, Californians overwhelmingly voted Proposition 35, the Californians Against Sexual Exploitation (CASE) Act, into law, but the Ninth Circuit of Appeals on Nov. 18 overturned one provision of that law — the requirement for sex offenders to report all online identities within 24 hours of creating them. Judge Jay Bybee summed up the court’s conclusion, writing, “the CASE Act unnecessarily chills protected speech … (it) does not make clear what sex offenders are required to report, there are insufficient safeguards preventing the public release of the information sex offenders do report, and the 24-hour reporting requirement is onerous and overbroad.”

In light of the court’s decision, California lawmakers should revise the law to make the reporting requirement clear and compatible with the First Amendment while also serving the law’s purpose in protecting children. However, this fiasco brings to light a significant problem we are facing in American politics: poorly written laws. The question must be asked: Why are laws designed to protect the vulnerable being written so badly that the wording unintentionally endangers the law itself?

The CASE Act’s provision for reporting requirements were contradictory, as described by the Ninth Circuit on page 26 of their ruling, in one place requiring only communication accounts (such as forums and chatrooms), while in another place requiring all accounts, regardless of use. The court thus concluded that the uncertainty of what to report would cause ample difficulty for sex offenders to confidently fulfill the requirements without fear of consequences, and this would have a “chilling effect,” deterring them from engaging in Internet communication. As a result, the act, as currently worded, infringes upon the First Amendment rights of sex offenders participating in online speech.

It is important to protect minors and other vulnerable people from online predators, but it is also important to protect freedom of speech, and the court decided that the act, as written, fails to do the latter. For one thing, the act’s burden upon Internet speech does not distinguish between private accounts (with banks, utilities, online vendors, etc.) and public discussion accounts. Furthermore, the act sees no difference between sex offenders who used the Internet to facilitate their crimes and those who did not, including those whose crimes occurred decades ago before the Internet was even a thing.

As a result of poor, vague writing, the provision was quickly put on hold back in 2012 shortly after the act was voted into law, and now has been officially overruled. This means that, to this day, California has been legally prohibited from requiring sex offenders to register their online identities, and all because the legal team behind the CASE Act did a poor job defining that provision.

What is really irksome about this, though, is the fact that this situation is very similar to the fiasco facing the Affordable Care Act right now. Earlier in November, the Supreme Court agreed to examine the effect five words in the ACA, “Exchange established by the state,” would have on the distribution of tax subsidies in states that did not establish an exchange. In such states, a federal exchange was established instead, and the challenges to the law claim that, based on the writing, non-state exchanges are not eligible for the subsidies.

If the Supreme Court rules in favor of the challengers and revokes tax subsidies in the 37 states with federal-only exchanges, millions of citizens in those states would see their insurance costs skyrocket, possibly resulting in many dropping their coverage — the exact opposite effect the ACA was supposed to have. This in turn would potentially cause insurance companies to abandon those markets, leaving few coverage options for the lower classes. This is a ridiculous situation, whether you support the ACA or not. A law should be challenged on the effects it is imposing on the American people. It should not be left open to attack on the basis of poor wording.

This is something that lawmakers need to do a better job with, especially with laws intended to help and protect the vulnerable. Through sloppy design, the CASE Act’s reporting requirement for sex offenders’ online identities has been shut down. Through sloppy design, a significant provision of the Affordable Care Act is under threat of being shut down. Bills are written to benefit their citizens, be debated and approach flaws with an eye for the greater public good. Having legislation that is so slipshod that the courts can shut it down calls into question the quality of the legislative process. Did nobody catch these problems during review? There needs to be a better effort made to ensure the laws that are passed actually reflect, in writing, the intent of the writers, especially when the law is intended to protect the vulnerable, such as children. This way, when those laws are challenged in court, decisions can be made based on those intentions, and not simply on poorly done legal expression.

Facebook Comments