By Chris Zoukis

A challenge to the newly passed “International Megan’s Law” has been tossed out of court by Judge Phyllis J. Hamilton of the United States District Court for the Northern District of California.

The plaintiffs alleged that the International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes through Advanced Notification of Traveling Sex Offenders (IML), which requires the Department of State to place a “unique identifier” on the passport of all sex offenders subject to registration, violated the United States Constitution in several ways. The defendants, including the Department of State, Department of Homeland Security, the U.S. Marshal’s Service, and more, claimed that the plaintiffs lacked standing to bring the suit, as the passport provisions in question were not yet in effect. They also denied that the IML violated the Constitution in any way.

The court’s opinion, issued September 23, 2016, agreed with the government on every point. The court held that the case was not ripe for review because the challenged portion of the law was not yet in effect, and that the plaintiffs couldn’t have been injured and thus had no standing to sue.

The court could have stopped there, as lack of standing destroys subject matter jurisdiction — which means that the court cannot hear the case, even if it wanted to. Judge Hamilton went further, however, and addressed each of the underlying constitutional claims, again finding for the government on each claim.

For instance, the court found that the IML did not amount to compelled speech, in violation of the First Amendment, because “the information contained in a passport is unquestionably government speech.” Because the speech in question came from the government, it could not be construed as a private individual’s speech, compelled by the government. Moreover, the court took the position that the government speech in the IML context was no more than a factual statement — person A is a sex offender, for example — as opposed to an ideological or political point of view.

“It is not the speech of the passport holder that is at issue, any more than the speech of the holder of a government-issued identification is at issue with respect to identifiers such as name, date of birth, height, weight, or eye color,” said the court.

In denying the plaintiffs’ due process, equal protection, free association and ex post facto claims, the court held fast to its belief that the status of sex offender is a simple fact, comparable to eye color, as opposed to a designation similar to “most hated person.”

As of press time, there was no information available as to the color (i.e. yellow) or shape (i.e. star) of the “unique identifier” that will soon adorn the passports of a specific class of greatly despised American citizens. It should be noted that the Nazi government used such a symbol on the identification papers of Jewish people prior to World War II.

This article recently appeared in Prison Legal News in November 2016.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).