From the Fall 2000 issue of The News Media & The Law, page 27.
By Catherine Cameron
A lengthy challenge to the New Jersey Megan’s Law ended in September with the law intact. However, a new set of attorney general guidelines bars recipients of sex offender information from giving it to the media.
New Jersey enacted the first law in the United States requiring convicted sexual offenders to register their whereabouts with the state and notification of people likely to come in contact with the offender. Known as Megan’s Law, it is named after Megan Kanka, a young girl murdered in 1994 by Jesse Timmendequas, a recidivist sex offender living in her neighborhood, whose criminal history was not known to neighbors. (See NM&L Spring 1995)
Early in the life of the six-year-old law, five fictitiously named plaintiffs challenged the statute on constitutional grounds. The plaintiffs claimed that the law violated the ex post facto, double jeopardy and due process provisions of the constitution. The five plaintiffs also claimed that their constitutional rights of privacy were violated by the law.
The ensuing three-year court battle concluded in early September at the U.S. Court of Appeals in Philadelphia (3rd Cir.). The court said the law was constitutional because the state has a compelling interest in protecting the public from repeat sexual offenders.
The court also placed its stamp of approval on new guidelines drafted by the New Jersey attorney general that threaten court action against anyone attempting to publish Megan’s Law information or anyone who gives the information to the media.
The benefit to journalists from New Jersey’s Megan’s Law remains in question because it is not a public access law. In fact, the Rules of Conduct flyers given out with Megan’s Law information tell lawful recipients not to give any information to the media. Yet, the statute forces law enforcement officers to disseminate information otherwise unavailable to the public in the absence of Megan’s Law.
The specific exclusion of the media from obtaining information apparently suitable for at least some members of the public treads on the First Amendment. And an even more vexing question looms: What happens when a journalist receives the information from someone who has been specifically directed by the authorities not to make that information public?
Although the media is generally not a recipient of Megan’s Law information under the statute, in 1998 the Home News Tribune in East Brunswick asked for information about registrants. One person who received information from the state gave it to the newspaper. The newspaper, in turn, published the information, including the name, home address, criminal history and a photograph of an offender. At the time, the attorney general investigated the newspaper’s actions, but never filed any charges against it.
Another New Jersey newspaper, the Trentonian, received Megan’s Law information because its offices were inside the radius for notification, according to John O’Brien, executive director of the New Jersey Press Association.
“Of course they were told ‘you can’t tell anybody,’ which is obviously difficult for an editor,” O’Brien said. “They decided to publish the information, but not the name.”
In addition to the newspaper publicity, the plaintiffs claimed they had experienced loss of employment, forced eviction and threats of physical harm due to unauthorized dissemination of Megan’s Law notices. Because of these claims, a federal district court in New Jersey, now hearing the case on remand from the federal appeals court in Philadelphia, enjoined any further releases of Megan’s Law information and ordered the attorney general to draft new guidelines to better protect information about the offenders in January 2000.
The federal district court approved the new guidelines in March, touting them as a “reasonable method of distributing sex offender information to authorized persons, while avoiding disclosure to unauthorized persons.” Authorized recipients are law enforcement, schools, community organizations who care for children, and persons in a half-mile radius of the offender, depending on how serious of a threat the offender is determined to be by a superior court judge.
The new guidelines incorporate the court’s decision that offenders have privacy interests in their home addresses. They require prosecutors to create two different notices for each offender — a redacted notice and an unredacted notice — with the former excluding the exact street address of the offender. Unredacted notices are only given to people a superior court judge decides need to know the exact street address of the offender.
If the judge determines that a Megan’s Law recipient should be given an unredacted notice, the recipient must sign a form agreeing to comply with the court’s order and the Rules of Conduct flyer, which threatens legal action if the recipient gives the information to the media or attempts to publish the information.
The registered sex offenders in the lawsuit again appealed to the federal appellate court challenging the guidelines, which did not include penalties for people who leaked the information. In rejecting the plaintiffs’ appeal, the court noted that the Rules of Conduct include a strong warning to recipients that court action may be taken if they leak information. The recipients are specifically directed not to give the information to the media or answer any questions about what they received. Furthermore, the recipients are directed not to publish any of the information themselves.
Additionally, the guidelines specifically direct prosecutors to “use their best efforts to attempt to secure contempt of court provisions” in Megan’s Law orders. However, in July, two state Supreme Court justices wrote a letter instructing members of the state bench to refrain from including contempt clauses in Megan’s Law orders. The federal appellate court deciding the case did not address the status of the contempt clause issue, but concluded the Rules of Conduct flyers would sufficiently prevent leaks.
At a time when the U.S. Supreme Court is deciding whether a broadcaster who aired material unlawfully obtained by a third person is liable for the third person’s criminal conduct, publishing Megan’s Law information presents a similarly sticky issue for the media. (Bartnicki v. Vopper)
If prosecutors follow the attorney general’s guidelines, it appears they will seek to include contempt of court clauses into most orders of release. If this practice holds true, it would be unlawful for a recipient to give a reporter any information about an offender. Those who sign the agreement to receive unredacted notices could also violate the guidelines by sharing the information.
However, the two newspapers that published Megan’s Law information prior to the new guidelines incurred no formal action by the state and in many ways these guidelines only clarify the rules New Jersey reporters have been living with about Megan’s Law information since its inception, according to O’Brien.
“There’s really nothing new in [the guidelines]. All of these things have been articulated in various forms to us in the past, either verbally or in writing, and what they have done is consolidate everything in one document now,” he said. “Substantively, it hasn’t changed the way we have had to deal with this law since it was passed — there are no new revelations in here, no new restrictions that we see.”
Beyond the possibility of liability for publishing information given to the media from a lawful recipient, is the issue of a lawful recipient attempting, on his own, to publicize an offender’s whereabouts. The Rules of Conduct’s strict prohibition appears to constitute a prior restraint on publication, a practice rarely permitted by the constitution. O’Brien pointed out the statutory mandate makes New Jersey’s Megan’s Law one of the most restrictive laws in the country.
“This is the state where Megan Kanka, the girl the law was named after, lived and died,” he said, “but if [the court order] draws a line down the street in my neighborhood, I can’t tell my neighbor when I’m taking out the trash that some weirdo is living in our neighborhood.”
Although these issues are troubling, the guidelines continue to be in effect in New Jersey. How the state chooses to enforce the rules remains to be seen, and it is uncertain whether anyone will come forward to challenge the law. However, O’Brien thinks that day will come.
“These guidelines do look like a prior restraint and I’m sure someone will challenge them,” he said.
All states now have Megan’s Laws although they treat the information in different ways. Many of the laws resemble public access laws. New York, for instance, has a 900 number that citizens can dial to find out if someone is a convicted sexual offender. Florida has created an online database where someone can simply enter a zip code and the database will retrieve photographs and statistics of every sexual offender living in that zip code.