Lawsuit Says ‘Scarlet Letter’ Passports for Sex Offenders Are Unconstitutional

A bill that President Obama signed into law on Monday requires that passports used by registered sex offenders carry a "conspicuous" mark to ensure the bearers are properly scrutinized, shunned, harassed, and stigmatized wherever they might travel. A federal lawsuit filed yesterday in San Francisco argues that the so-called International Megan's Law (IML), which passed both houses of Congress on voice votes without any real debate, violates the First Amendment, the Fifth Amendment, and the Ex Post Facto Clause.

The IML, which Lenore Skenazy and Elizabeth Nolan Brown covered here recently, is supposedly aimed at people who visit other countries to have sex with children. That seems to be a pretty rare crime. According to Justice Department data cited in the complaint, about 10 Americans are convicted of "sexual crimes against minors in other countries" each year. As the IML itself notes, the State Department already had "authority to deny passports to individuals convicted of the crime of sex tourism involving minors." The IML provision requiring "unique passport identifiers" sweeps much more broadly, covering any registered sex offender who was convicted of a crime involving a minor, regardless of the details, when the crime occurred, or whether the offender poses an ongoing threat. 

The Americans whose passports will brand them as international child molesters include people who committed their offenses as minors and even people who still are minors (as are more than a quarter of registered sex offenders). They include people who as teenagers had consensual sex with other teenagers. They include people convicted of misdemeanors as well as people convicted of felonies. They include people who committed their crimes decades ago and have never reoffended. They include people convicted of noncontact offenses such as sexting, streaking, public urination, and possession of child pornography. The IML, which authorizes the State Department to revoke the passports of covered sex offenders so they can be issued new ones that make their pariah status clear, treats all of these people as a menace to children everywhere.

"The United States has never before used passports to differentiate among citizens or to otherwise mark or stigmatize a specific group of disfavored individuals," the lawsuit says. "The IML imposes a proverbial Scarlet Letter and compels speech in violation of the First Amendment by forcing Covered Individuals to identify themselves publicly as 'sex offenders' on their United States passport, which serves both as a primary form of identification within the United States [and] as an essential international travel document."

That label is not just unwanted but in the vast majority of cases inaccurate, to the extent that it suggests the people to whom it applies are on the prowl for children to rape. The lawsuit notes that recidivism rates for sex offenders are much lower than commonly thought. According to the California Department of Corrections and Rehabilitation (CDCR), "The re-offense rate for California registrants on parole is 0.8 percent, the lowest re-offense rate for any crime except murder." The CDCR also reports that 96 percent of arrests for sex crimes involve "first-time offenders" who have never been listed in a registry.  

The four plaintiffs who brought the lawsuit are subject to the IML's passport requirement or a separate, potentially broader provision authorizing the State Department to notify foreign officials of sex offenders traveling to their countries even if the offenders are no longer required to register. One plaintiff, who "was convicted of a felony sex offense involving a minor over twenty-five years ago," is "an officer of a corporation with facilities and customers in Europe and Asia, and routinely travels to various countries within Europe and Asia for business purposes." Another plaintiff, a lawyer who in 1998 "pled guilty to felony sex offenses involving a teenaged minor" that were later reduced to misdemeanors and ultimately expunged, "routinely travels to countries in Europe, Asia, and Latin America in connection with his legal representation of clients." He is no longer required to register as a sex offender but is still subject to the IML's notification provision.

The plaintiffs worry that the "Scarlet Letter" and "international travel blacklist" created by the IML will subject them and their traveling companions to harassment and possibly assault—a concern that is not at all implausible given the experiences of registered sex offenders in the United States, which have included "dozens of reports of vigilante reprisals, physical attacks, and even murders." The lawsuit argues that the IML impinges on the freedom to travel, to earn a living, and to associate with family members in other countries, depriving covered individuals of liberty without due process of law.

The plaintiffs also argue that the IML imposes ex post facto punishment—a claim that seems plausible but is unlikely to fly, since courts have held that registration itself, which imposes similar burdens, is regulatory rather than punitive. The lawsuit's claim that the IML violates the Fifth Amendment's implicit guarantee of equal protection likewise seems doomed to fail. Generally speaking, a legal distinction passes an equal protection challenge as long as it has a "rational basis," a highly permissive standard.

The plaintiffs argue that heightened scrutiny is appropriate in this case because "individuals convicted of sex offenses constitute a discrete and insular minority that is uniquely subject to public and private discrimination, and whose rights are uniquely subject to unconstitutional deprivation by state action, including by state action that is motivated by malice, that is arbitrary and capricious, that bears no rational relationship to any legitimate government purpose, and that is not sufficiently tailored to serve a legitimate government purpose." All of that is true, but for the same reasons no court is likely to agree.