[00:00] Introduction: Welcome to Registry Matters, an independent production. Our opinions are our own. We are thankful for the support of our patrons. You make what we do here possible. And always remember, F-Y-P.
[00:17] Andy: Recording live from FYP Studios East and West, transmitting across the internet, this is episode 382 of Registry Matters. Larry, has your blood pressure come down yet?
[00:27] Larry: Not yet.
[00:30] Andy: You were kind of going off there for a minute. Let’s just dive right in. Forget all that stuff about liking and subscribing, but whatever. So, hey, what are we doing tonight?
[00:43] Larry: Well, we have a case to dissect from the United States District Court for the Southern District of West Virginia. Now, it’s not a final decision; it’s a case in progress, but we’re going to dissect where we are because these things that are happening right now are routine and normal. We need to explain them so people don’t say, well, how come it’s taking so long for our case? So we’re going to go through the steps of how a case develops. Also, we have a few questions from our vast listening audience to go through.
[01:18] Andy: And you’re saying that cases aren’t like going to McDonald’s and getting a Happy Meal and walking out in three minutes?
[01:24] Larry: No, unfortunately, civil cases take years, and there’s no way to do that. There’s no timeline. In criminal cases, there are speedy trial rights and other mechanisms that can move a case along faster, giving them priority. But in civil cases, they can linger for a long time depending on the complexity of the issues and how much resistance the opposing party puts up. And states typically put up significant resistance because they have unlimited budgets. We’ve seen this before with states spending lots of money putting forward frivolous arguments for extended periods of time. This will likely be the case here as well when we get into it later.
[02:09] Andy: All right. Well, yeah, that’s a few segments from now. So this is our new patron, correct? I think I sent you information about him today. Same guy?
[02:19] Announcer: Yes, I believe so. A North Carolina sheriff gave a man permission to travel to a wedding. The man followed every instruction, came home, and got arrested anyway. Over and over again. For a rule a deputy invented. The court stripped away qualified immunity. Andy and Larry have thoughts. Patrons can watch the show get recorded live, mistakes and all. Become one at patreon.com/slash registry matters. All
[02:45] Andy: Right. So I have been on Virginia’s SOR since a conviction in 1998. The trooper who watches over me, we’ll call him Handler, is sure that all of the newer regulations and laws apply to me. I say no. Unless it, quote unquote, specifically says it is retroactive to include me. One example is the newest law in Virginia about visiting a park. The key being to meet a child for illegal contact. Of course, just because will be their argument. Because whether you admit it or not, they know your intent. So how do we challenge the idea that all these restrictions are retroactive to people like me? Interesting question. Yeah, how do you navigate that? And can you just hold up the piece of paper and say, “Look, this doesn’t apply to me”?
[03:35] Larry: So, well, this is a good question. And didn’t have a lot of time to work on it because it just, you sent it to me two hours before the program? I think it was earlier than that, but give or take, yes. So, but I’m not sure that this is actually a law in Virginia. I did a quick AI summary and located Senate Bill 1108 from the 2025 session. And it says this bill amends Virginia law to expand restrictions on sex offenders’ proximity to children by adding state parks to the list of locations where convicted sex offenders are prohibited from approaching. Specifically, starting July 1, 2025, any adult convicted of an offense prohibiting proximity to children will be permanently banned from coming within 100 feet of playgrounds, athletic fields, or facilities, or gymnasiums located within state parks when the purpose is to have contact with children who are not in their custody. Now, I like that wording. An offense prohibiting proximity to children includes various serious sex offenses involving minors, such as kidnapping, sexual assault, indecent liberties, and child prong. The bill classifies a violation of this prohibition as a class six felony, which is the lowest level felony in Virginia. And the law applies not only to those convicted in Virginia but also to individuals convicted of similar offenses in other jurisdictions. But my research shows that the bill died. So I’d like to have additional information. But I can still answer the question. How you would challenge it would be you would have to get ready for litigation for years and overcome a few hurdles, such as showing that you have standing. Your conviction is going to have to fit within this criteria, however broadly they’ve defined it. And you’re going to have to show that you are a person who potentially this would apply to. And then you would assume how the government will know what it’s going to do. I mean, it’s more than likely there will be a certain number of challenges, including the 100 feet. How would you know? Just out of curiosity, do you have the ability to measure 100 feet with you at all times?
[06:12] Andy: No, no, no, I would have to get to my computer and figure it out that way, but not on my phone at any time. So…
[06:21] Larry: A ban from coming within a hundred feet of athletic fields, but in state parks where the purpose is to have contact with children. So I see a claim there for a state park that you pay taxes to support. You’re being banned from something your tax dollars work to pay for. And I see the vagueness of it—how would you enforce the 100 feet? How would you know it? And then, of course, what does “contact” mean? So you’ve got—
[06:59] Andy: Your gym shorts on and your shoes on, and you’re like, I am going to the state park where they have a track that’s measured out quarter miles. I’m gonna go do my two mile run. My purpose is to go for the run. There happened to be children there. How would you defend that? It’s just your word against anybody else’s. You can’t really defend it because of what your purpose is.
[07:24] Larry: So yes, this is creativity at its best. But did it become law? And if so, we need to see it in the statutory scheme, which I have not. If it didn’t become law, did Virginia authorities try to promulgate it as a regulation and apply it, although it’s not law? Wouldn’t that be funny if they thought, well, this is a great idea, this is a great law. And we’ll just promulgate this as a regulation in the PFR regulatory scheme?
[07:59] Andy: I could see that the handlers go to some kind of training saying that here’s some law that’s coming down the pike, make sure your people are complying with it. And then the bill dies. And nobody ever came back in their training and says, oh, by the way, you shouldn’t do this anymore because it doesn’t apply. So yeah,
[08:18] Larry: I could see that as well.
[08:22] Andy: So what’s your advice to our new patron, Grouchy Old Man?
[08:27] Larry: Well, my advice is always very politely to ask for the statutory citations. I could tell you all day something’s against the law, but I should be able to tell you which New Mexico statutes it comes from. They should be able to provide that information. If they say it’s the law and don’t give you a specific section number or location in the code, that’s not good enough. I’d like to see it. For example, if someone says they saw a bill but thinks it died, you can ask: Did it become law? What section is it in the code? Because I want to be very familiar with it and make sure I don’t violate it.
[09:10] Andy: And I assume, Larry, depending on how bad you want to fight this, you have to be willing to get locked up, go to a hearing for probation violation, and whatnot. You might need to go before a judge who says, let this guy go because he didn’t violate anything in the law. Like you have to be willing to go that far.
[09:31] Larry: Well, that’s one way to get a constitutional challenge going, but you don’t have to wait for arrest as long as there’s a credible threat of enforcement. If someone in authority says they will enforce something and raises their hand to do so, like the sheriff over in Columbia County, Georgia did regarding school bus stops about 15 years ago, then you’ve got all the credible threat of enforcement you need to preemptively strike. But if there’s no real threat of enforcement or it’s not even a law, that is reckless litigation.
[10:32] Andy: That’s actually before my time.
[10:34] Larry: Well, we’ve talked about it on podcasts with Whitaker. He said, “I put my hand on the Bible.” I think he actually did say that. He said, “I swore an oath and under the penalty of the Bible or perjury,” but he said, “I swore an oath.” And I’m going to enforce the laws in my county. But then Wendy had everything she needed. She had a law and she had a credible threat of enforcement because the person in charge of enforcement said, “I’m going to do that because I swore I would.”
[11:04] Andy: Very well. So we need a follow-up from Groucho Man to determine whether this is actually a law or not. And has anybody threatened you with arrest?
[11:15] Larry: It would be good. And we
[11:16] Andy: can cover it in a future episode with more information.
[11:18] Guest 1: Fabulous. Registry matters.
[11:50] Andy: All right. Well, then another question. This one came from Rebecca says, my boyfriend is a PFR about six months out and we can’t find him work. He’s an experienced cook with no degree and a bad driving record. So restaurant kitchens seem like the answer. California’s 290.95 says he can’t work in an unaccompanied setting with minors or have supervision or disciplinary power over them. His PO first said back of the house was fine since cooks are usually adults. So we applied to about 40 different places. Then we found out some restaurants hire teens as cooks. And when he finally got a hold of his PO again, she reversed herself. If any minor works in the back with him, he can’t take the job. So my question is, how is that condition supposed to be read? It says unaccompanied setting with and disciplinary power, but it’s being enforced as a total ban on any kitchen where a teenager might also work. What do you do when your PO’s interpretation shifts mid-search and lands stricter than the words on the page?
[12:59] Larry: That is the toughest question someone has asked me in a long time. Because I generally suggest that people do what their probation officers tell them to do and not fuck with the system. But okay, supervision or disciplinary power over them seems to be pretty straightforward, right?
[13:22] Andy: I think so. If you built an org chart, that would mean you’re a line above that person, right?
[13:29] Larry: Right. So under the standard being articulated now, he basically can’t work anywhere at all because there are very few jobs that don’t hire teenagers if they can find them. Now, the funny thing is, teenagers don’t participate in the workforce as much as they used to 30, 40, or 50 years ago, but they’re still welcome in many jobs. Under this interpretation, he couldn’t work anywhere. He might be able to work in an adult bookstore, but that would violate his probation because it involves stimuli. So he can’t do that either.
[14:06] Andy: Right. Even places like Olive Garden, where the servers all have to be at least 18 or 21 to serve alcohol. But then you’ve got bussers and dishwashers who could be underage.
[14:27] Larry: It would be very unlikely that in a restaurant of any size you would have no teenagers at all. You’ll have a lot fewer than what we used to have, but having done it myself, my first thought is that I certainly wouldn’t call my probation officer if I found a job where there might be a teenager working at the back of the house. I mean, I wouldn’t do that. And then the question becomes: How would the PO know? Is the PO going to barge into the restaurant and take an inventory of who’s working and ask for their dates of birth? That’s not realistic. And how often would that be checked? There could be no teenager working at the back of the house, which means you can’t start a job because one might start next week. So folks, you don’t need to call your PO every time you breathe. You really don’t.
[15:24] Andy: Some people think they have to check with their PO before making any move. Like, okay, it’s time to get out of bed. Hey, PO, can I get out of bed now?
[15:32] Larry: So I’m not wanting to make fun of the person, but I think you can be a little too paranoid. They’re supposed to provide your basic conditions in writing. You can’t comply with something you haven’t seen. So if it involves unaccompanied minors or having disciplinary power over them, well, unaccompanied minors—I don’t know exactly what that means because very few minors are accompanied by an adult when they’re working. I can’t think of a single job where that would be the case.
[16:08] Andy: Yes. That’s holding hands, supervising the kid.
[16:13] Larry: Special needs minors might have a company, but I can’t think of how this would work out. So if it were me, I would say, hmm, this doesn’t make any sense. It’s kind of like don’t drive, but especially don’t drive. Do you remember your condition?
[16:32] Andy: I do recall this one explicitly. I got a funny story for you. And you showed it to me. This one will blow your head. I went on an impromptu road trip last weekend to go see something that was a short-lived event and ran through a McDonald’s to get lunch real quick. They told us to pull up, wait because they were cooking the fries or whatever. Pulled up, waited there for a second. And then like, I’m going to say a child, but a very young person showed up. I was like, holy crap, man. How old are you? He was 14. There’s a 14-year-old working at a McDonald’s not too far from here. And I was like, what in the hell? And I looked back at my kid. I’m like, you just got your first job and you’re 19. So anyway, 14.
[17:25] Larry: That was the case back in my day. You could get special permission. You had to get a work permit or something like that. The normal working age was 16 in Georgia, but you could work earlier with permission.
[17:37] Andy: Yeah, you had to get some kind of little permission slip. You may have had to have your school sign off on it too. I had a job somewhere around the 13 or 14 range scooping ice cream at Baskin Robbins.
[17:45] Larry: In my day. So, but this is something where I think there might be an overreaction. I would focus on super supervision and disciplinary measures. I don’t supervise anybody here. I’m just a cook. Right? I don’t do the hiring or firing. And I can’t control who comes in and out of the kitchen. They hire people, so how would I ever work anywhere? Because unless he works on an oil platform somewhere out in the Permian Basin in New Mexico, I can’t think of jobs where teenagers are not allowed to work.
[18:28] Andy: And if you’re a cook, going back to the Olive Garden example, someone comes in and says, make me some pasta. Yeah, you make the pasta. You’re not directing someone else to help prepare it. So if you’re just a line cook or short order cook, you’re not supervising anybody there. And Larry, if you ask someone, Hey, can you get me a rag? Does that mean you’re supervising them? Is that all it would take to cross that boundary?
[19:01] Larry: So I don’t know. But the final question he asked is what do you do when your PO’s interpretation shifts mid-search? If push comes to shove, if you must, you ask for a judicial interpretation. But if you’re on probation, not parole, that would go to a court. If you’re on parole, it goes through a bureaucracy rather than a court. Going to a court is going to be a last resort because when you go to court against your PO, things are not going to go well from that point forward. They won’t take it lightly. They’ll say, why didn’t you come talk to me? Of course, you did try talking to them. They forgot all about it. You went to the judge only because they wouldn’t give you a reasonable interpretation. So you asked the judge for an interpretation.
[19:51] Guest 2: A Michigan man reported his new address early but got prosecuted because the old tenant would not move out. His diligence became evidence against him. Now, the state Supreme Court says the ruling that struck down that law was a misdemeanor. Andy and Larry explained who this could free on today’s episode with no ads by signing up at patreon.com/registrymatters.
[20:12] Andy: Well then last before we move along. So question from Heidi says my family member has about 10 months left on probation and needs to move to New York. He’s already done a year and a half of home detention, has been released on good behavior, but he’s still under strict monitoring. The move isn’t optional. He needs a medical specialist there, and family who can help care for him. And we’ve already worked around the thousand-foot school restriction. The problem is no buddy can tell us how to actually do it. Every New York lawyer he’s consulted is baffled by transferring residents during probation. His own PO says it’s not her job. And his home state lawyer has never had a case like it. When we get down to the real details, whether he can buy property, what order things happen in, how long he stays registered in each state during the transition—every attorney and his PO give us completely opposite answers. So my question is who actually handles an interstate transfer while you’re still on probation and how does someone cut through all this conflicting information to get it done? Right? This one has your name written all over it, Larry.
[21:27] Larry: Yeah, it sure does. And I don’t understand the complexity of it because it actually does start with your supervising probation officer. There’s a little thing that confuses me. I just caught as you read that it said his home state lawyer has never had a case like that. That implies he’s not living in the state that he was convicted in, doesn’t it? Oh, does it not imply that to you?
[21:54] Andy: That could be. So now we have a three-state kind of thing going on.
[21:57] Larry: So, but nonetheless, it works the same way. If he’s already on interstate contact and you as an offender don’t do anything other than express your desire to move because moving is a privilege, even if it’s medically necessary. We’re assuming this is state-imposed supervision. Federal works completely different, but we’re going to assume this is a state conviction. The probation people initiate the paperwork through an electronic system called ICONS. They put forth an application to the state you’d like to move to. Ten months is more than enough time; there’s either a three or six-month limit for initiating the process. You need to have been on probation for that minimum period of time, but 10 months is sufficient. Since he has a P.O., we know it’s not unsupervised because he wouldn’t have one if it was unsupervised. The P.O.’s job is to initiate the application through the interstate compact system if they choose to. Remember, you don’t have the right to do this yourself; only probation can start the process. There’s a checklist of things needed: sentencing order, conditions of supervision, and basic workup information. It goes to New York, where their field office near your new address will investigate for 45 days to see if it meets criteria. They’ll notify the state whether they accept or reject the application. If rejected, you start over; if accepted, they issue reporting instructions. All punishment from the original court follows you: fines, restitution, and supervision duration. New York sets your supervision costs and registration requirements.
[24:52] Andy: Yeah, but okay. To be fair, Larry, I tried to do this before I even met you. I got my probation people to approve it and worked on an address, but ultimately the address wasn’t approved. It wasn’t impossible to navigate, though. I didn’t need a lawyer; I just asked probation if I could move. They weren’t happy about doing paperwork for me, and 45 days went by without approval. Even though it was across from a police station, they still didn’t want me there.
[25:45] Larry: Well, see, I don’t see the necessity of an attorney. You go in and say you’re confused about the process to transfer interstate. It starts with your current supervising officer if you’re out in the community. If you’re in prison, it starts with your transition plan. But you can’t make your own application; only probation or prison officials can submit it.
[26:21] Andy: And you just ask your PO to initiate it and they initiate it.
[26:24] Larry: They have the choice. Some states like to hold onto their offenders because it leads to a larger problem and a larger budget. New Mexico is one of them; they don’t want sex offenders to leave New Mexico. Now, I’m the opposite—I want to get rid of as many as we can. If you’re going to offend, there will be a small percentage who do, but I would rather you offend in Ohio than here. Why do I hate on Ohio so much? Well, I just picked that state because we happen to have someone there, but the point is, if you’re not here, you can’t offend here.
[27:08] Andy: Oh, that’s totally true.
[27:09] Larry: It’s totally true. Well, I would rather you be offending at that three to four to 5%. I would rather you be offending someplace else. So I’d want to get rid of them as quickly as possible.
[27:19] Andy: But if you’re trying to justify your job, then as the other point you were making, if you’re trying to justify your existence, having more people than fewer makes your job security that much stronger.
[27:28] Larry: Well, that’s the higher level bureaucracy. The implication is that the employee doesn’t see their job in jeopardy. They think they’re overworked already. But going up the food chain, the bureaucracy realizes if they lose 100 offenders, they’ve just lost four PO positions.
[27:43] Andy: What about this person going over their PO’s head to their supervisor?
[27:48] Larry: I wouldn’t do that until I exhausted the options and if the person says, “We don’t transfer people,” then it’s dead. You’re not being transferred. But if they say, “I ain’t gonna do the work,” you can respond by saying, “Well, I’ve got medical needs that need to be addressed. So if you can’t help me with this, who would you recommend I talk to?”
[28:12] Andy: Yeah. Back to the other times we’ve mentioned going over their head, they’re going to come down with an anvil on your head next time they come around to check your property.
[28:21] Larry: They absolutely do. In most cases, they will. Now, if you’re in Maryland where it’s piers, wind, and snow, they probably wouldn’t do that. But if you’re anywhere else, there’s a good chance they would.
[28:31] Andy: Somebody in chat says transfers are considered a privilege. Not saying that’s right, but so they can just say no. And that’s the end of that conversation.
[28:40] Larry: There are a few exceptions, but generally yes, that’s your exception. If you’re in the military and the government orders you to go somewhere else, honestly, that provision is overused because nobody in the military is under supervision. True. But there are a few mandatory transfer cases where they have to do it. I don’t think this is going to qualify as one of them. The fact that he has medical needs, I don’t think it’s going to qualify as a mandatory. I don’t remember anything in the compact about that.
[29:09] Andy: Really? Like, you’re telling me that the only doctor on the planet who can help is in New York?
[29:19] Larry: Well, I think she said more than just the doctor. She mentioned support structures and things like that.
[29:24] Andy: Yes, there was also talk about the support structure and all that stuff. The person would be able to stay there with a thousand-foot restriction and everything else. But if it’s not some advanced cancer research or something similar, doctors are everywhere. I understand the importance of the support system.
[29:44] Larry: There are some states that have shortages, but like I say, I’m going to tread very gently and try to get it done through the process without having to go over their head. But if he must go and the PO won’t do it, I’ll ask, “Are you sure? Because I’m going to do it. I’m going to really need to talk to somebody to get this done. And if it’s not your job, we need to find out whose job it is.”
[30:06] Guest 1: Understand. A giant verdict against a social media company sounds like a win. Until you read what the state wants next. Age checks that mean handing your government identification to every website. And encryption stripped out entirely. Andy and Larry explain who really pays for that. Support the fight. And we’ll see you next time.
[30:37] Andy: All right, well then let’s move over to this final segment that we have here in West Virginia. I spent all my time today reading the court’s order thoroughly, so you better be prepared for some tough questions. Are you? Well, I hope I am. All right, well, let’s see what you got. The case is John Doe Number One v. James L. Mitchell. It’s pending in the United States District Court for the Southern District of West Virginia. Is this a NARSO case? It is indeed. Now, what does NARSO stand for? How
[31:18] Larry: Do you know what the acronym stands for?
[31:21] Andy: The acronym is N A R S O L, and it’s the National Association for Rational Sexual Offense Law.
[31:28] Larry: Okay. So we’re going to give NARSO a shout out. This is their case.
[31:32] Andy: Yes, because we do that quite frequently, to be honest with you. Pretty regularly. Let me set this up. The plaintiffs one through three are convicted individuals who are registered under the West Virginia PFR registry pursuant to the West Virginia PFR act. And the defendant is Colonel James L. Mitchell, who serves as superintendent of the West Virginia state police. It’s the agency responsible for enforcing the West Virginia SORA. The plaintiffs both individually and on behalf of members of a proposed class are challenging West Virginia code 15 dash 12 dash two D eight. They allege that it violates both the first and 14th amendments. Now, can you tell me what this code is and what it requires?
[32:22] Larry: West Virginia code 15 dash 12 dash two D subsection eight. It requires registered PFRs to disclose and provide the West Virginia state police information related to any internet accounts. The registrant has to report any screen names, usernames, or aliases used on the internet. Also, it requires that any change in the registrant’s internet accounts be reported to the West Virginia state police in person within 10 business days, which typically requires an appointment and new photographs and fingerprints to be taken.
[33:22] Andy: I’m trying to set up a new email account somewhere. Within 10 days, I have to go get my fingerprints, toes, and photographs taken. Correct.
[33:36] Larry: Remember, I’m harping on this because they guard taxpayer resources with their life. They would never do anything duplicative or unnecessary. So that’s why it’s funny.
[33:46] Andy: Understand. It is not funny at all. Anyway, so continue on please.
[33:52] Larry: Failure to disclose any required information, as well as any change in such information, can result in a felony conviction with one to five years of imprisonment. The West Virginia state police is permitted to make certain disclosed information available to the public via the registry database on its website.
[34:11] Andy: This is not funny. What is the penalty? It’s up to five years of imprisonment. Wow, okay. So I saw in a footnote that the court notes the registry on the West Virginia state police website permits members of the public to search email and usernames of PFRs. Why is this case then significant?
[34:38] Larry: Well, because it
[34:39] Andy: it likely
[34:41] Larry: chills free speech. The plaintiffs asserted that the disclosure requirement violates the First Amendment due to being overly broad. They claim the disclosure requirements specifically target speakers engaged in online communication, thus targeting conduct with a significant expressive element and having the inevitable effect of singling out those engaged in expressive activity. And they quoted a case I wasn’t too fond of at first but turned out to be wrong about: Cornelio v. Connecticut back in 2022, decided by the Second Circuit. They allege that it burdens protected speech because it chills the willingness of individuals subject to it to engage in constitutionally protected speech online, knowing that doing so will trigger reporting obligations to the state.
[35:33] Andy: That does seem credible.
[35:35] Larry: Anyway, did they provide any examples of how it might chill speech? Oh, they did. They said speech that could be chilled includes creating an account to leave a comment on a news article or joining a social media platform. The plaintiffs alleged that section 15-128 burdens the right to speak anonymously. They claim that section targets an enormous amount of protected speech and is not narrowly drawn when judged against the legitimate sweep that the statute might have. They also argue that the information compelled to be provided to the state has never or rarely been used for legitimate governmental or law enforcement purposes, such as investigating, solving, and preventing a crime. Now, that is a very creative argument. I wish I had thought of it.
[36:23] Andy: Well, I guess you don’t have to think of it now to be in your quiver for later. Huh? Yeah.
[36:28] Larry: I like that. Just call them out. Hey, you’re full of it. You have never used this for this purpose. I love that.
[36:38] Andy: Now I noticed that they also asserted that 15-12-2D8 is unconstitutionally vague. They allege that the statute does not define “internet account,” does not specify what “information relating to” means, and does not limit the requirement to social networking platforms or accounts used for communication. They assert that if read broadly, the term “any internet account” could include financial portals, employment platforms, medical accounts, subscription services, retail accounts, or other non-communicative online services. I can imagine. So you go get blood drawn at Quest and create an account to log into their portal to see your results. You’d have to report that to the state police.
[37:27] Larry: And you gotta have your fingerprints made in the pictures and all that kind of stuff.
[37:32] Andy: Do they have a good argument? Do you think?
[37:35] Larry: I believe they got a very credible argument. Okay. Well then if we can move over to the meat of the case, the plaintiffs requested an injunction prohibiting the state from continuing to enforce West Virginia code annotated 15-12-2D8 and databasing such information online for public search or disclosure. The defendant moved to dismiss the case. That’s routine, right?
[37:59] Larry: Yeah, totally. We’re doing routine and absolutely predictable.
[38:04] Andy: Would you do the deed of describing what the motion reads?
[38:08] Larry: Well, what that motion is, it’s a standard operating procedure under federal rules of criminal procedure, Rule 12(b)(6). And you allege that the person failed to state a claim upon which relief could be granted. Even if everything they said is true, this is not something the court can grant. So that’s what they do. But this motion doesn’t decide the ultimate outcome of the case. Unless the motion is granted, the rules of procedure require that a pleading itself contain a short and plain statement showing the pleader is entitled to relief. Here’s what they’re doing: I’m entitled to relief, here’s why. Additionally, allegations must be simple, concise, and direct. You don’t do a 300-page complaint; you make it brief and say, “The sheriff is violating my constitutional rights.” Here’s how, here’s what they’re doing.
[39:18] Andy: Now I believe I’ve heard you say that the court must assume the allegations contained in the complaint are true at this stage of the proceedings. That
[39:27] Larry: is correct. And the judge even affirmed that the judge stated the court must accept as true all factual allegations contained in the complaint. The court must also draw all reasonable factual inferences from those facts in the plaintiff’s favor. However, statements of bare legal conclusions are not entitled to the assumption of truth and are insufficient to state a claim. Meaning you can’t put in legal conclusions; it’s for the judge, but you could put the facts. Furthermore, the court need not accept as true unwarranted inferences or unreasonable conclusions or arguments. So you can’t just go off on a tangent, but they are supposed to liberally construe the complaint as being true.
[40:08] Andy: Well, so for me, can you make it much more simple? What is required to survive a motion to dismiss?
[40:16] Larry: Good question. To survive a motion to dismiss, a complaint must contain sufficient factual matter accepted as true to state a claim to relief that is plausible on its face. Meaning I believe what you said and you’ve cited enough authority that I could grant this relief assuming you can prove it going forward. According to the court, a plaintiff must use the complaint to articulate facts when accepted as true that show the plaintiff has stated a claim that would entitle him or her to relief. It’s a task that requires the reviewing court to draw on its judicial experience and common sense. And I know you don’t care much about the term common sense, but that’s what the court said.
[41:00] Andy: Sure. Because if it were so common, it would be more common. And it’s also subjective. So the defendant moved to dismiss the plaintiff’s claims of constitutional vagueness and overbreadth. The court found that the defendant’s motion should be granted as to the vageness claim and denied as to the overbreadth claim.
[41:26] Larry: The defendant argued that the section is not a constitutionally vague statute. Defendants asserted that based on its ordinary meaning, plaintiffs would know they need to disclose the fact that they have an internet account. If you’re online, that would seem to be an internet account. The defendants contended that 1512 requires disclosure of information relating to any internet accounts, including screen names, usernames, or aliases. Information related to should be understood as requiring information needed for identification purposes. Defendants argued it’s clear that plaintiffs understand this applies to any internet account, meaning it’s not limited to communications-related accounts and every account must be disclosed. The defendants also argued that the statutory requirement states only those sex offenders who knowingly fail to disclose will be subject to conviction. They further contended that scientific requirements are not needed to resolve vagueness issues because the West Virginia Supreme Court in State v. Nolte back in 2014 interpreted this section and found it not to be unconstitutionally vague. A federal court is required to defer to the interpretation of the state’s highest tribunal unless it’s strictly contrary to the US Constitution or US Supreme Court precedent.
[43:18] Andy: Well, then what did the court hold in terms of the vagueness claim?
[43:22] Larry: The court noted that the West Virginia Supreme Court has previously interpreted this section in State v. Nolte back in 2014. The court is bound by the West Virginia Supreme Court’s interpretation. The court held that registered sex offenders must disclose all of their Internet accounts. The court in Nolte, when interpreting the section, explained that the purpose of the act is to allow the public and law enforcement to monitor the whereabouts of sex offenders. While the statute is broad in scope, it is rather specific. That’s what they said at the West Virginia Supreme Court.
[43:57] Andy: Well, the judge also said even without the West Virginia Supreme Court’s interpretation, the court finds that this subsection is not unconstitutionally vague. Let’s move on to the overbreadth claim. The defendant argued that the plaintiffs failed to meet the difficult burden required to demonstrate such a challenge. He asserted that the complaint does not address the plainly legitimate suite [suit] Fifteen twelve to eight and does not measure its constitutional applications against its unconstitutional applications. He contended that the plaintiffs failed to mention the act’s non-speech related applications, such as the disclosure of financial reports, medical accounts, subscription services, retail accounts, and other non-communicative online services which do not implicate the First Amendment. And what are your thoughts on that? I think the state is nuts.
[44:51] Guest 1: It’s by the strangest collection of misfits, Looney Tunes, since the advent of the Third Reich.
[44:58] Larry: Sorry, I couldn’t resist. So they also argued that 1512 to date is narrowly tailored because it does not prevent anyone from speaking. Now, this is why I argue with Cornelio, because it doesn’t say you can’t speak. It burdens speech minimally. It leaves open the door to alternative channels of communication. The information revealed is very limited and it provides the state with an important tool to protect the public by knowing registrants’ online whereabouts. And it applies only to convicted sex offenders required to register. This is what I hung my hat on because this was the way the case law looked at the time that Cornelio was litigating, and I said, well, you speak all you want to. You just have to disclose that you’re speaking. But apparently, I was wrong.
[45:44] Andy: The defendant argued that the plaintiffs are unable to demonstrate that a substantial amount of the application of 1512 to date is unconstitutional, given that it encompasses non-expressive conduct that does not implicate the First Amendment, such as bank accounts, medical account subscription services, and online retail accounts. Now, what did the court decide then? Well,
[46:07] Larry: the court stated that this is an argument for another day, given the standard for analysis under Rule 12(b)(6). Given the plaintiffs have plausibly alleged that the disclosure requirement of 1512 to date burdens protected speech and the right to speak anonymously, the court finds they have plausibly alleged that a substantial amount of its applications are unconstitutional in relation to its legitimate sweep.
[46:36] Andy: And the way that we’ve set this up, this case still has traction and is still moving along.
[46:42] Larry: Correct. The court stated because the plaintiffs have plausibly pled that 1512 to date is not applicable and is overbroad, there’s a need for a more developed record as it relates to whether it materially advances the state’s interest and is narrowly tailored to serve that interest. The court finds that the motion to dismiss the plaintiff’s First Amendment claim must be denied. Did you say “a more developed record”? I did say this case needs to be fully developed, and it may or may not be appropriate for summary judgment. And I’m not prepared to say yet if summary judgment is appropriate; I need to see the pleadings.
[47:18] Andy: Do you know much about the federal judge assigned to the case? This seems to be an enlightened ruling coming from a not so enlightened state, I must say.
[47:29] Larry: I do. It’s an African American woman who has an amazing life story. Irene Cornelia Berger is the first African American female judge in West Virginia, serving on the U.S. District Court for the Southern District of West Virginia. Her father worked in the coal mine, a standard occupation in that state for many decades, for nearly 41 years, and her mother was a housewife. Both were well-read despite not having completed high school and instilled in her the values of education. Berger earned her Bachelor of Arts in Mathematics from West Virginia University in 1976 and a Juris Doctor from West Virginia University College of Law in 1979. After law school, Berger worked as staff attorney for the Legal Aid Society of Charleston, representing low-income clients in domestic consumer and tenant-landlord disputes from 1979 to 1982. In May of 1984, Berger joined the U.S. Attorney’s Office for the Southern District of West Virginia as an Assistant U.S. Attorney. Later that year, she was appointed by Governor Gaston Caperton as a Kanawha County Circuit Judge.
[49:17] Andy: And what will happen next in this case then?
[49:23] Larry: The legal team working on this case must now prove the assertions they’ve made in the complaint. They get the chance to have their day in court; folks, don’t blow it. You’ve got a chance to prove this, so let’s do what it takes. If we have to go out and raise more money, if we have to go out and beg, if we have to go over budget, let’s win this case.
[49:48] Andy: Your opinion, Larry. Do you think this is a good case?
[49:55] Larry: It’s a good case because Cornelial has done the heavy lifting, and now we can coast in and use the work that has been done previously. I’m not sure if they’re in the same circuit, but I think they are. Even if they aren’t, it’s still persuasive authority. So, if anybody wants to do the research and see what Western Virginians are doing, feel free. But even without being in the same circuit, it’s a good case to use for persuasive arguments.
[50:22] Andy: Fantastic. Well, very good. Do you have anything else you’d like to talk about before we wrap up?
[50:30] Larry: I think this came out to be exactly the amount of time we needed. We did have the new patron to welcome, and we had the question from Grouchy Old Man, which is what he called himself.
[50:41] Andy: Yeah, old man grouchy, grouchy old man. And we got that. Not even a quote-unquote real name was needed.
[50:48] Larry: We got our new patron, and barring something where you learn how to be in two places at one time, we won’t be able to record next weekend. So we probably won’t have an episode unless something dramatic happens and we need to record on a non-regular day.
[51:05] Andy: That’s correct. Please head over to registrymatters.co for show notes and other links. You can email us at registrymatterscast@gmail.com, leave an old-fashioned voicemail message at 747-227-4477, or support the program on Patreon at patreon.com/registrymatters. Have a great night, Larry. I’ll talk to you soon. Good night.
[51:31] Introduction: You’ve been listening to FYP.