No? This is an ancient thing, and I think it goes back hundreds and hundreds of years. Can a reasonably intelligent person detect whether the system they’re interacting with is either a human or a computer? I don’t think you’ve got a shot in hell anymore, especially with the more advanced ones. You have no idea that you are talking to a computer. They are very convincing. Obviously, grammar is perfect. They can remember things that you talked about yesterday, the day before, et cetera. Like, you have no idea that you’re talking to an AI. So this is going to then pop up and remind you that you are not speaking with a human being.
Okay, all right. Data privacy prohibits AI technology companies from selling or sharing a user’s personal information unless it is fully de-identified. I’m sure you can get that one. De-identified? Yeah, so anonymized would be a better way to word that. All right. Name, image, and likeness protections amend state law to prohibit the unauthorized commercial use of an individual’s name, image, or likeness created through generative AI without express consent. Do you know that when you sign up on Facebook, they will put pictures of people sort of tangentially related to you, friends of yours, and they’ll say, “Hey, Andy wants to be friends with you on Facebook”? You’re like, “How did they get that information?” And then extend that out to make it where they’re generating fake people using your image and populating that.
Okay, keep going. All right. Foreign influence restrictions bar state and local governmental entities from contracting for AI technology, software, or products with companies tied to foreign countries of concern, including, of course, China and Russia. I mean, like, okay, now that would be more up…
[10:02] Larry: Your alley than mine. You pronounce that like some individual familiar. [10:06] Andy: Yes, I understand that. Do you want to expand on why that would be such a big deal? Look, bar state and local governmental entities from contracting for AI technology similar to what we’re doing in the U.S. That means Florida companies cannot use a software product from China or Russia. [10:26] Larry: What it appears to mean to me anyway. [10:28] Andy: Oh yeah, let’s make ourselves more isolationist. Perfect. All right, enforcement authority grants the Department of Legal Affairs rulemaking and enforcement authority, allowing for civil penalties of up to 50,000 bucks per violation under the Florida Deceptive and Unfair Trade Practices Act. Whatever. [10:46] Larry: You’ve done a good job telling me the bullet points, but let’s talk about the political side. The sponsors are Republican Senator Tom Leek. An identical bill is introduced in the House. They do that dual system of running one in each chamber, and it’s being carried by Republican Alex Rizzo. During Wednesday’s committee meeting, in closing, Senator Leek said the bill is predominantly about protecting Florida children and vulnerable adults, as well as consumers. He went on to say, “I believe we have to act. In fact, I think it’s morally correct to protect these children.” Now, those are always good buzzwords. If you do that, it’s about the children, you have to vote yes. If you vote no on something that’s protecting the children, you’re asking to end your political career. [11:32] Andy: Senator Carlos, well, Larry Mo Smith spoke in support of the bill during debate and thanked Leek for bringing the legislation forward. I think this AI Bill of Rights is strong and a necessary first step. It recognizes that innovation and individual rights can go on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and on and on. The bill embraces the opportunity that comes from AI while also drawing very clear lines to protect our privacy, our dignity, and basic fairness. [12:01] Larry: Dokie, and the next steps. The bill passed through the Senate Commerce and Tourism Committee on a unanimous 10 to 0 vote, and it has one more Senate committee left before we go to the Senate floor. Folks, if it passes—I don’t know if it’s good or bad—but if it passes the other committee unanimously, not if, but it passes the other committee unanimously, it’s going to pass the floor unanimously. So it’s headed to the House, and the House bill, if it’s moving, it’s going to head to the Senate. So this is whatever it is, good or bad, it’s going to become law. [12:32] Andy: Who contacted us stated the following: we are facing an authoritarian drift where structural checks on executive power are being replaced by high-tech efficiency. I have a full briefing package mapping these statutory handshakes, and I’m seeking to support amicus briefs or legislative testimony to stop this before the March 13th deadline. [12:57] Larry: Now that was a confusing thing to me because the briefs he’s talking about are not a part of the legislative process; that’s a judicial thing. I don’t know what the March 13th deadline is unless it’s a crossover date. If Florida has a crossover date, if the bill doesn’t cross over, it dies. But folks, crossover dates don’t mean anything. They’re legitimate workarounds for crossover dates, but that may be what I was talking about, the March 13th deadline. So it may have to cross over to the House or it dies. [13:25] Andy: Wait a minute, stop. Tell me about—did you say workarounds? Legitimate workarounds to crossover dates? Yes. [13:32] Larry: Absolutely. I thought legitimate, like— [13:34] Andy: I thought the whole idea was to just make it stop and gum it up so it doesn’t cross over and then you’re done. What would be a way to bypass that? Well— [13:42] Larry: Every piece of legislation, until it’s passed in its final form, can be amended both in committees and on the floor. Right? So hypothetically, if there’s a bill that’s already crossed over from the Senate and neither the house bill—well, remember the identical bill that was introduced in the house? If it’s bogged down in the house and this didn’t cross over, all you would need to do would be take this bill to something that has already crossed over and offer it as an amendment in the house. If it’s adopted as an amendment, it becomes a part of that legislation. Kind of like what happened with the Texas law where they were giving the small towns the same rights. Yes, and they thought they had cut a fat hog because they killed it, but there was an amendment attached to a bill that already crossed over, giving them the small towns the same power that the big cities have. So there’s a workaround. If they really want to pass it, if the will is there, they can pass it. [14:43] Andy: I see, and this whole thing about protecting the children is just— they talk about something similar with encryption and having secure messaging. It’s, oh my god, we have to be able to see whatever anybody is sending because someone’s going to try and talk to a child. If it’s encrypted, then we won’t be able to see who said what, when, and all that. So it’s all about protecting the children—it’s garbage. It’s hard. I don’t see how you really put forth anything that actually protects or does anything for this because suppose somebody is out of state. If the company is out of state, then they don’t have to follow Florida’s rules, or do they? Well, or do they? I don’t know. It doesn’t seem like if your company is in San Jose, California, Floridians don’t have to follow the Florida rules. [15:41] Larry: Well, we’ll find out. I don’t know if they’re going to be able to do that. I don’t know if this is even tangentially enough related to what we do. You have far more expertise than I do, but if you are interested in this, I can reach out to the sender, and we could get information and maybe even have a guest appearance. But I don’t know anything, so you’d have to drive the bus. [16:03] Andy: I have deep interest in it because it doesn’t take a lot. You heard the voice cloning that I was messing around with during the week, and I was just running on my computer, Larry. I didn’t go out and pay for any services. I think that final one that I sent you was pretty solid. I thought it. [16:19] Larry: was very good. It was way better than the first version of [16:22] Andy: course, of course. I didn’t add any pauses, ums, or anything. It was just like straight script reading out of Wikipedia practically. So anyhow, let’s move along. We got this thing from the United States Third Circuit Court of Appeals, and this is good news. In fact, the press release was issued by the Pennsylvania Association for Rational Sexual Offense Laws, also known as PARSOL. The title of the email was, “PARSOL Applauds Third Circuit Victory Protecting Fair Chance Hiring in Pennsylvania.” The opening paragraph states the Pennsylvania Association, PARSOL, celebrates a major legal victory for workers with criminal records following yesterday’s decision by the U.S. Court of Appeals for the Third Circuit in Fath. Would you call that Fath? I would. Okay, Fath versus Central Transport LLC. The court reversed the district court’s dismissal and held that Pennsylvania’s Criminal History Record Information Act, or CHRIA, protects job applicants even when an employer learns about a past conviction directly from the applicant rather than from a state criminal records file. Now this is positive news. What is this case about? [17:41] Larry: Well, Central Transport rejected Mr. Fath for a truck driving job after he disclosed a 15-year-old armed robbery conviction, despite his commercial driver’s license, relevant experience, and federal port clearance, which I don’t know what it is, but I’m assuming it requires some kind of security check. We wouldn’t want people coming into our ports that we didn’t know anything about. The Third Circuit’s decision means that his claim may now proceed, and it sends a strong report to the Court of Appeals for the Third Circuit in Fath. The entire Third Circuit must comply with CHRIA’s substantive and notice requirements whenever they rely on an applicant’s criminal history, regardless of how that information is obtained. So [18:28] Andy: this does have to be considered positive news if you don’t have to, if that helps you get a job even if you have a conviction, right? Oh. [18:37] Larry: it indeed it is. Parcel managing director John Doll wrote, quote, “we are deeply invested in ensuring that individuals with criminal records are afforded fair opportunities for employment and reintegration into society, and our interests align with Pennsylvania’s long-standing policy to avoid unwarranted stigmatization and unreasonable restrictions on those with criminal histories.” That’s a nice quote. [19:04] Andy: yeah, and according to the news release, the Third Circuit emphasized that job hunting is never easy. Having a criminal conviction makes it so much harder and confirmed that CHRIA limits how and when employers may use an applicant’s criminal history. The panel concluded that Central Transport could not avoid CHRIA’s requirements simply because it received information about Rodney Fath’s 15-year-old robbery conviction from him during the hiring process rather than through a background check. Parcel stated this outcome directly aligns with the position advanced in an amicus brief joined by Parcel and more than 15 other non-profit organizations led by the National Employment Law Project (NELP) and litigated by Otten and Goldenberg LLP. The amici urged the court to reject a narrow reading of CHRIA that would have allowed employers to sidestep the law’s protection simply by asking applicants to self-disclose their records instead of obtaining them from a state agency. [20:11] Larry: Now let’s dissect that a little bit more, and then we’ll get to the last sentence. Make sure I understand it. Read it again and explain it so I can understand. Remember, I’m a high school dropout. [20:19] Andy: Right, so the amici urged the court to reject a narrow reading of CHRIA that would have allowed employers to sidestep the law’s protection simply by asking applicants to self-disclose their records instead of obtaining them from a state agency. [20:35] Larry: I think I understand it now. So they’re getting around to check the box. They were saying, “Well, it wasn’t because they checked the box; they told us.” Okay, now I understand. The amicus brief detailed how millions of Pennsylvanians live with criminal records and face steep barriers to work that are often unrelated to their ability to safely and successfully perform a job. It also highlighted Pennsylvania’s long-standing policy, rooted in state constitutional principles, that disfavors blanket employment exclusions based on prior convictions and instead requires that any consideration of a conviction be tied to the actual duties of the job. Now, gee, that kind of makes sense. CHRIA codifies that policy by allowing employers to consider felony and misdemeanor convictions only to the extent that they relate to the applicant’s suitability for the specific position and by requiring written notice where criminal history is used to deny employment. I bet they’re going to carve out PFRs. You think so? I bet they do. [21:35] Andy: Well, interesting. All right, so that, but yeah, okay, I get it. That’s good. This is good news. [21:44] Larry: I’d say it’s really good news in terms of the people who are looking for jobs because “check the box.” I mean, we were hard pressed to get that passed here, and we finally did ban the box. But that doesn’t ban them from saying, “We can’t hire you because of this conviction,” if they didn’t get on the box. As long as they got it from some other place, they said, “Well, we still know about it.” So I can see that this would be helpful. [22:10] Andy: I get you totally. You’re [22:11] Larry: Banning the box, but that’s not the case. I’m just saying that’s not the case. That doesn’t ban the discrimination. This is going a step towards banning the outright discrimination. [22:18] Andy: Sure, God, I mean at 15 years, like hell, there’s got to be some kind of line. Larry, obviously, if like one year ago, it would have a lot of relevance. Five years, obviously less. Fifteen years ago, like, are you the same person? [22:37] Larry: Well, we are not very good about forgiving in this land of forgiveness. We are not. We are not. [22:42] Andy: Very good about it, we are not very good about it at all. [22:44] Larry: We claim that we believe in that, and I mean, it’s Judeo-Christian principles, at least Christian principles. I heard all my life, but it’s amazing that in the Bible Belt, where they talk about those Christian principles so much, they seem to be the most harsh about being unforgiving. I mean, isn’t that funny? [23:01] Andy: Fire and brimstone, baby. Old Testament world down there. Nuke your whole family and everybody up and down, just, you know, like the flood. Let’s just do it that way. Plagues, all that makes sense. [23:16] Announcer: sense to me. [23:16] Larry: Perfect. [23:17] Andy: Are. [23:18] Announcer: If you are a first-time listener of Registry Matters, well then make us a part of your daily routine and subscribe today. Just search for Registry Matters through your favorite podcast app, hit the subscribe button, and you’re off to the races. You can now enjoy hours of sarcasm and snark from Andy and Larry on a weekly basis. Oh, and there’s some excellent information thrown in there too. Subscribing also encourages others to get on the bandwagon and become regular Registry Matters listeners. So what are you waiting for? Subscribe to Registry Matters right now, help us keep fighting, and continue to say F Y P. [24:10] Andy: Well, let’s talk about this case from Kentucky. Should I talk like Turtle Head? Who’s that? Never mind. It’s an appeal from the United States District Court for the Western District of Kentucky. The name of the case is John Doe—God, there’s so many John Does out there—and on behalf of himself and others so situated versus John Berlu. Berlu is his name in his official capacity as Davies County, Kentucky attorney, and on behalf of his family and all county attorneys in their official capacities. Did we win? Uh, not exactly, no. Should I play the womp womp sound? No. [24:55] Larry: We didn’t exactly win, but we haven’t lost either. [24:59] Andy: Right, well, okay, so that’s kind of an evasive answer. So what does that mean? I was reading on the first page, and something jumped out at me immediately. Circuit Judge Murphy said this case shows the cost that litigants impose on themselves when they’re in court and pursue only facial constitutional claims. Now, he cited Moody versus Net Choice LLC, 603 US 707, 723, and that’s from 2024. I’ve heard you talk about, since we started this program, that facial challenges are really risky. Why is that? [25:35] Larry: Because to prevail on a facial challenge, the legal standard is quite tough. The challengers must meet the standard as follows: there are no set of circumstances where the challenged act could be constitutional. I tell folks when you start challenging the registry, saying facially you can’t register people, that’s where you go wrong. There are dozens of situations where I could design a constitutional registry. We just haven’t done it, but I could. And we have registries that operate quite within the constitutional framework. You have also heard me pontificate that almost anything can be done if you don’t have a constitutional framework, if the act is narrowly tailored to an individual rather than an entire class of people. Also, the restriction must be no greater than necessary to achieve the purported purpose of the restriction. Victims’ advocates, law enforcement, please listen: you can do almost anything if you’ll stop painting with a broad brush. Try to learn from FYP education; that’s what we’re here for. [26:36] Andy: You’re so generous giving away that advice for free. Well, [26:41] Larry: I do. I try to help the phone scammers. I try to help them be better. [26:47] Andy: Let me set up the case, please. Kentucky passed a law requiring covered PFRs to put their legal names on their qualifying social media accounts. John Doe, a covered PFR, sought to have the statute declared unconstitutional and moved for a preliminary injunction. He argued that the law violated the First Amendment because it barred regulated parties from speaking anonymously online. Yet he did not attempt to enjoin the law as applied to any specific speech or any specific social media account. Rather, he sought broad relief by arguing that the law was facially overbroad. Although the district court agreed with Doe, it did not engage in the demanding comprehensive review that a facial challenge requires. [27:34] Larry: And that is true. They also said, like the Supreme Court in Net Choice, we vacate the court’s injunction and remand for further proceedings. So that was the big cost they paid. This case has been set back for years now. [27:51] Andy: Tell me something. Do you know what the origin of this law is? [27:56] Larry: I think I do, but the court explained it better than I could. They said at a legislative hearing in early 2024, a Kentucky state senator recalled a conversation that she had had with a constituent about a loophole in Kentucky’s P.O. for registration laws. Now, you also heard me say that through the years, most of the time they don’t dream this stuff up; it’s brought to them by advocacies or advocates or individuals. While the constituent was planning an event for children, an honest man reached out on social media asking about whether his business could participate. The constituent discovered, only through additional research, that Kentucky had placed this man on the PFR registry. The senator introduced Senate Bill 249 to close this gaping loophole by requiring PFRs to use their legal names on social media. Within months of this hearing, the Kentucky legislature unanimously passed the bill. Now, there are at least two Democrats in the legislature in Kentucky and the governor, and the governor probably… [29:01] Andy: A maximum, not at least a maximum. [29:03] Larry: The governor signed it into law, and as you know, it is Kentucky Revised Statute 17. [29:08] Andy: As I understand it, Kentucky law now prohibits a registrant who has committed a criminal offense against a victim who is a minor from creating or having control of an account on a social media platform unless the account displays his or her full legal name. The law defines the phrase “criminal offense against a victim who is a minor” to include over a dozen crimes, including, for example, kidnapping, unlawful imprisonment, human trafficking involving commercial sexual activity, and sexual abuse, so long as the victim of these crimes was under the age of 18. [29:48] Larry: This is a very comprehensive list for sure. It doesn’t sound like much narrow tailoring has occurred, but they just can’t help themselves, can they? [29:59] Andy: That sounds like it. The law also contains an extended definition of the types of social media platforms that do and do not trigger its disclosure duties. On the one hand, the definition covers a website or application that is open to the public. If it’s a website and it’s not open to the public, who would use it? An application that is open to the public, I mean, Facebook is behind at least a login prompt, so whatever. It allows the user to create an account and enables users to, among other things, interact socially with other users on the website or in the app, share a social connection with other users, and create or post content viewable by others. On the other hand, it excludes a broadband internet access service, an email account, a search engine, a cloud storage or cloud computing service, a service in which interaction between users is limited to reviewing products offered for sale or commenting on other users’ reviews, and a website that consists primarily of a provider’s own selected content, even if readers may chat or post comments about this content. That’s complicated. Now, I thought you said that laws must be drafted with clarity where a person of ordinary intelligence can comply. I feel that. But I am a teeny bit above average, and that’s complicated. [31:34] Larry: It’s definitely far above my ability to understand. And I think if I had been in the mix on this planning of this lawsuit, I would have raised that as one of the challenges, because I accept the fact that they can limit a small group of PFRs. Perhaps the people that brought this case do not accept that fact, but there would be constraints you could put justifiably and constitutionally. But I would have brought that in to try to narrow the focus of this law, because if I can hammer you down on who you can apply it to, and I can hammer you down on how you’ve drafted it and force you to put more concise and understandable language, I’ve won. And remember what I’m here for? I think you’ve got a clip for that. [32:13] Andy: Oh, I do. I do. Right here. I’m sorry, what? Right. Trying to win the game. I mean, so one of my problems with something like this, Larry, is that there is one I’m sure you’re familiar with. It’s called LinkedIn. Yes, LinkedIn fits all of that criteria. You create an account. It’s open to the public. You are supposed to share content or contact other people. And in this modern world, the way that—and even in the old days, Larry, like the way you get a job is through word of mouth. And this is just a word of mouth amplifier, so to speak, that it doesn’t have to be somebody that you saw at the restaurant last week or anything like that. These are people that you’ve interacted with five or ten years ago, and you now are open to a job and you put open for work, and there’s this banner on your image that says you’re open for work, and poof, then you end up with a job, but it’s not designed for children. And it doesn’t really say that, does it? [33:17] Larry: Not so far. I haven’t seen it. No, I [33:19] Andy: don’t think it was in there. It’s like social media. If you can create an account and share content, that’s… I didn’t see anything that is because you don’t. I don’t think that I’ve ever seen someone under, I don’t know, 20 or 25 on LinkedIn, really. All right. Well, anyway, let’s talk about the plaintiff. A state court had previously convicted Doe of multiple child porn offenses when he was 18 years old in 2015. Doe received a five-year suspended sentence for these crimes and must register for the rest of his life. So the new applies to him. Since his conviction, though, Doe has lived a law-abiding life. He has not been under any type of criminal supervision for many years. He’s also married and has children. Is he a good candidate, do you think? [34:07] Larry: Probably about as good as we could hope for in this situation. I mean, you’re not going to find too many people this will apply to that say too loud in choir on Sunday. So it’s probably as good as we could have found. So I don’t have any criticism of the plaintiff. [34:19] Andy: All right. So Doe regularly uses social media, including X, formerly Twitter, and Reddit to obtain news, communicate with friends and family, and comment on other users’ content. Well, that fits all those things that we read above. Although he keeps his social media accounts anonymous, he does regularly disclose his prior conviction and status as a PFR. He also states his unpopular political opinion that PFR registration laws do not deter crime and unfairly affect his children. I think everyone would agree that that is true. Now, when Doe has disclosed his prior crime or stated these opinions, other social media users have harassed him online and threatened him and his family. He has also faced harassment for unrelated opinions. Doe fears that the new disclosure duty could lead to severe harm for his wife and children because the PFR laws elsewhere require him to publicly reveal his address. Doe thus plans to deactivate his social media and cease using it altogether rather than put his legal name on the accounts. [35:32] Larry: I think I can agree with that. Should have thought about it in advance. [35:35] Andy: Do you agree that these fears are justified? [35:39] Larry: Actually, I very much agree with these. I don’t understand how it would be complicated. But again, I know that there are thousands of legislators listening. If you had just narrowed this down to websites that are primarily accessed by minors. And I don’t have the exact language because I’m thinking on the fly. But if you tried to narrow it down to people who had very recent offenses and maybe put some kind of objective criteria that they could jump through without a whole lot of jumping to show that they’re beyond that, that’s no longer who they are. You could do this. Sure. But you just can’t help yourself. You fall into the trap of wanting to please a constituent and make a name for yourself and say, I passed a bill, have it to put on your campaign literature that you got the toughest social media law in the United States. That’s what they’re doing here. [36:32] Andy: Let me ask you a question in your opinion as like a bill writer. And I know that you’re not super tech savvy in this regard, but I go on Reddit pretty regularly. I have my own little curated list of, they’re called subreddits. And God, I was talking to my kid the other day and I was like, I probably have 50. No, I’ve got like 200 things that I follow from things like I have some storage network attached storage in my basement. So I am part of that subgroup. I do follow the sex offender support one and on and on and on. I rarely post, Larry, and forget that I rarely post. But even if I did, I have no idea who I am talking to. The person on the other end that I happen to be very rarely replying to, they could be 12. They could be 120. No clue. I rarely even look at their screen name to see who they are presenting themselves as. But as far as where I’m going with this, though, is if a handler wants to look at what I am interacting with, they could see the channels that I am a part of and determine whether I am going after children-oriented content or engaging in adult-oriented conversations and content to either help me professionally or, you know, like get better at life or whatever the hell those things are. There’s get disciplined and so forth, trying to improve health and exercise and professional. Why would that… But is that too much to ask? [38:09] Larry: for? Well, yeah, but see, that’s when you have a handler. He no longer has a handler as you no longer have a handler. Well, [38:14] Andy: Sure, but he is still on the registry because he’s going to be on that for life. [38:17] Larry: But he doesn’t have a handler that can come to his house and search his browsing history and do those types of things. [38:23] Andy: So just the state sheriff’s office, whoever, you know, the state police. Those are the ones that are handling him now, so to speak. Just making sure that he’s following the rules of living restrictions. [38:35] Larry: Yes. And also they would probably be looking for social media to see if they can find where he’s not complying so they can make a case. But he has a lot more leeway to do things when he’s not being supervised directly. [38:48] Andy: And because of that, he then has his Fourth Amendment protections. They can’t just do random searches and seizures like someone on supervision does. That’s correct. [38:57] Larry: And also they will ask you. I’ve heard people that are there merely on the registry saying that they’ve been asked to consent to searches, and some of them do. And I tell them you don’t have to. But I’m not going to tell you don’t do it because if you don’t, things can go south. So you have to make your own personal decision. But yes, they would have to have some justification by a court to come in and search your computer and seize anything. [39:18] Andy: Interesting. OK. All right. Well, and I recall that you are very much not a fan of class action lawsuits. So let me read from the opinion. It says, “Well, that sounds like a win.” The court also concluded that it could grant class-wide relief even before ruling on Doe’s motion to certify a class. So it granted a preliminary injunction that barred Berlue and all county attorneys from enforcing the disclosure law against anyone. And then the trial judge held class-wide relief could be granted before he ruled on class certification. What did you decide on that question? At first, the [40:23] Larry: court first held that. But the district judge, the trial judge, held that Doe had standing to serve as a class representative for absent class members against any county attorney other than the Berlue County attorney. It then held that Doe could not pursue a class action against Berlue because he failed to show that absent class members were too numerous to join in a single suit. In other words, they didn’t do their homework in advance. And that counsel who was representing him could adequately represent a class of people. In a class action, the legal team has a duty to represent and communicate with all class members. It’s very difficult for a solo practitioner to meet that high standard. You’ve got to have bank. You’ve got to have resources. You’ve got to be able to reach out. You have to do mail. You have to build a website. You have to do a lot of things so you can communicate with a large class. It’s very hard for a solo practitioner working in their basement to have those types of resources. [41:19] Andy: So what it sounds like to me is that this has a negative impact on the case. Did it? [41:25] Larry: It did. The court’s decision to deny class certification led to a narrow ruling. It led the court to narrow its preliminary injunction. It limited the preliminary injunction to cover only Berlue and not any other county attorneys, and protect only Doe, not any other class members. So it was a very narrow thing. [41:44] Andy: Do you mind if we circle back on facial versus as-applied constitutional challenge? Would you explain what that all means? Can you dumb that down for especially for me? [41:55] Larry: I can do it, but the court did it even better. They explained it very well. They said these claims differ in the showing of unconstitutionality that a challenger must make to succeed. An as-applied claim requires the challenger to show only that the law violates the Constitution as applied to the specific conduct that the challenger seeks to undertake. On the other hand, a facial claim requires a challenger to show that the law violates the Constitution in a much broader set of fact patterns. This broader theory seeks a holding that the law could never be applied in a valid manner. And that is a really difficult thing when you’re saying there’s no registration scheme that could possibly be constitutional. You’ve lost as soon as you stop speaking because the registration scheme could be constitutional. They’re not, but they could be. So you’ve lost before you got to the gate. Now, if you said all African-Americans must remain in their homes on Sunday, there would be no set of circumstances where that would be constitutional. So you could raise a facial challenge on that. [43:02] Andy: Now, I recall the go, go, go. I’m sorry. [43:05] Larry: And succeed. [43:07] Andy: OK. I recall that we’ve discussed overbreadth in the context of the First Amendment claims. Now, could you go into that a little bit? Sure. The Supreme [43:16] Larry: Court’s so-called they invented this. I don’t think it’s in the Constitution. The overbreadth doctrine adopts an easier to meet test under the First Amendment to provide a little bit of breathing room for speech, and they cited Hansen, 599 U.S. at 769 to 777. A free speech challenger can succeed on a facial overbreadth challenge by showing that a law prohibits a substantial amount of protected speech as compared to its plainly legitimate sweep. There was a recent case in 2008, almost 20 years ago, U.S. versus Williams. I cited that in some own litigation. In other words, legislatures cannot obliterate the constitutional protection of free speech with a broad brush to hypothetically protect something very narrow. You’ve got to narrowly tailor any time. So when you’re writing something that’s First Amendment, you’ve got the overbreadth doctrine in addition to facial and as applied. So we can get you with overbreadth if you did something that would be legitimate if you had not been so broad. So, folks, listen to what the courts are telling you. Narrow it down. Don’t write it overly broad. [44:24] Andy: And so the way that I’m trying to understand this, the way that I’m reading it, seems that the litigants disagreed on whether the challenge was facial or as applied. Is that how that went down? How did the court resolve that disagreement? [44:37] Larry: Well, they had the same difficulty because the appellants in this case were trying to say, well, no, it’s not a facial, it’s as applied. But the court looked at two other data points that confirm. And let me just read. They said two other data points confirm we should consider only those facial challenges. For one thing, the district court treated those requests for preliminary injunction as raising only a facial claim seeking a facial remedy. The court evaluated those likelihood of success on the merits using the court’s overbreadth standards for facial claims on the First Amendment, finding in those favor. The district court initially granted broad facial relief, enjoining the law enforcement as applied to anyone on any social media account. And although the court later limited its relief to Doe when denying those requests to certify class action, it still relied on that initial facial analysis. It barred Burlew County from enforcing the law against Doe in all circumstances, not just as applied to any specific speech that Doe wished to express anonymously or specific social media account. They noted Doe has not preserved any as applied challenge in his appeal. [45:55] Andy: Now, would you remind us what is needed to preserve an issue for appeal? Well, [46:01] Larry: It’s actually more simple than what people make it. An appellate court is not trying the case from scratch. It’s looking at what’s already been done. And it’s not fair to a trial judge for them to act as if they had tried the case themselves because they didn’t. They didn’t hear the evidence. They didn’t evaluate the witnesses. They didn’t do any of those things. So in order for you to raise something on appeal, you need to raise the issue below and provide the trial court with at least an opportunity to rule on the question. That trial court can say, “Counsel, I’m not ruling on that. I’m going to reserve that and just never rule.” But if you’ve attempted or you’ve gotten an adverse ruling from the trial court, then the issue is preserved for appellate review. If you haven’t raised it, you can’t raise it for the first time on appeal. You can’t say, “Oops, if I’d have been doing my work more thoroughly, I would have thought of this and I would have done it differently.” It doesn’t work that way. [46:53] Andy: And then let’s talk about the Supreme Court’s decision in NetChoice for a little bit, too. [46:58] Larry: Well, I know very little about it, but just a little glean from this. The case addressed state laws that regulate social media platforms such as Facebook and YouTube. The laws regulate social media companies’ content moderation and require the company to send an individual message to a user when restricting the user’s content. Two circuit courts had reached different results on whether the laws violated the First Amendment. [47:21] Andy: Now, I thought that the Supreme Court ruling in Packingham versus North Carolina was sufficient to prevent this from happening. [47:27] Larry: Well, apparently so did Mr. Doe. But the court had an answer for that. The court stated that Doe’s contrary arguments lack merit. He first compares Kentucky law to the North Carolina law found unconstitutional in Packingham. Yet the two laws differ. The North Carolina law in Packingham affirmatively prohibited PFRs from using social media accounts. The Kentucky law merely requires them to disclose their legal names on these accounts. Now, would you admit that that’s a significant difference? If you’re told that you ain’t going to go on there, I’m going to lock you up. If they say you can go on there, but if you don’t give your name, I’m going to lock you up. [48:01] Andy: Right. Yeah, that is definitely different. [48:03] Larry: The Supreme Court has long viewed disclosure requirements, like the one in this case, as less restrictive on speech than absolute prohibitions like the one in Packingham. [48:18] Andy: All right. Well, then what happens next? [48:21] Larry: Well, it’s been remanded to the trial court for a new analysis. This case is going to drag on for a couple more years, possibly more. We’re back to basically almost starting from scratch in the trial court. That’s where we are. It’s a shame, but sometimes people try to go for gusto. You have to narrow and look at what you can win. Like I say, I’m looking at it through the rearview mirror, so I’m gonna try to be fair. I don’t know what I would have done if I’d been at the beginning, but I don’t like class actions, and I don’t like facial claims, so I would imagine just from my intuition of not liking either of those, I would have been pushing back. [49:04] Andy: Let me ask you this, just from a practicality point of view. If Doe had just sought relief for him, then his next-door neighbor can use that and say, “Well, he won, and I’m similar.” You don’t necessarily have to go for class action. Class action to me is like the whole tire thing with the Ford Explorers when all the tires were exploding and Explorers were rolling over and killing people. That’s a class action. [49:32] Larry: Correct, and you are correct on both accounts. There are cases where a class action is appropriate when the claims are almost identical or so similar that they’re difficult to distinguish, and they’re so numerous that you would clog the courts. We don’t know how numerous; nothing came up in my reading, and I didn’t read it word for word, but nothing came up in terms of how many offenders this is impacting, whether it would crash the court system as we know it, or whether or not the cases are all that similar. There was none of that disclosed. If it was, I didn’t see it in the case. When the airbag is prematurely deploying and shrapnel, similar materials are hitting you in the face and your eyes are getting put out, those are very similar. If it’s happened to 47,000 cars sold in Kentucky, you can fairly succinctly identify the breadth of it and how you wouldn’t want 47,000 individual cases moving through the court system. But this is, it reminds me a little bit of a case that was initiated in the western part of the United States about IML identifiers. [50:41] Andy: Cutler, what are you talking about there? I got nothing. I’m just drawing complete blanks, like the bubble over my head. I’m Rocky and Bullwinkle with the little bubble over my head, and it’s got nothing in it. [50:52] Larry: So that’s what this reminds me of. It was a little bit going for the gusto. See, I like to win. What I like to win everything I do, I like to win, and I would like to have won the case for Mr. Doe because then I could take credit for all the people that come in from the western part of the United States. They come swooping in to do litigation like happened in another state in the mid part of the country after we did the ice breaking, you know, the original case in Georgia. Georgia. Georgia, [51:22] Andy: Yep, yep, [51:23] Larry: That’s what I prefer to do. I prefer to keep cases narrow and focused, so that you can win, and then you can build from the win. [51:32] Andy: And that we also said at the beginning he was gonna win, right? He was gonna have the injunction. And then, like they had agreed they thought it was overbroad and they were going to apply it elsewhere, right? Yes, [51:46] Larry: Yes, he’s still likely to win. [51:49] Andy: Okay. But then again, still neighbor, neighbor, whatever. Next county over, like this guy, I’m basically similar. I got similar conditions, and I’m going to have to do this too. And you’d be like, oh, well, yeah, then you win too, before you even really do a lot of work. [52:04] Larry: Right. In that circumstance, if you have a federal court decision that’s withstood appeal, like if Doe had won this, if he’d have done an as-applied challenge, and if he had won this, without going for the gusto, there could be a whole avalanche of cases that would ensue using the appellate decision. Because I would imagine that Kentucky would have appealed if he’d have just been litigating for himself, because they wouldn’t want this precedent to be established, so they would have still appealed, but we would have a solid appellate decision. [52:33] Andy: I’m with you. I understand. I understand. Fantastic. Interesting. But I mean, so it’s sort of like a win with a loss too, because if he still wins, then that still has impact for others. It just isn’t everybody wins all at once. [52:47] Larry: And it’s years down the road, possibly two to three years down the road before this case resolves itself. Because it’s got to go through the trial court again. The trial judge is going to be very careful. Then the state’s going to appeal, because the trial judge is still going to grant the relief, I think. I don’t think this is a losing hand. So he’s still going to win, and then it’s going to go up on appeal again. We’re going to be waiting and waiting and waiting. [53:07] Andy: I see. Fantastic. [53:08] Larry: No telling how many people are going to get charged for violating this because of the extra two or three years of delay. [53:16] Andy: And would you have to have skin in the game that you are being threatened by the registry people in the state? Would you have to have skin in the game that you’re not following it, that you’re about to be arrested and all that, before you could? [53:30] Larry: You don’t have to wait to arrest an imminent, but you have to be within the plain sweep of the law. So if this applies to you, and remember, it’s a pretty broad, what did they say, 12 categories of offenders? Yeah, yeah, yeah. It’s pretty broad, but if you fit within one of those, you would have the requisite standing. [53:46] Andy: Okay, I gotcha. All right. Well, anything before we go? [53:51] Larry: I have one announcement to make. We are in the midst of a very short legislative session of 30 days. We’re almost at the midpoint. We will be at the midpoint Monday. The final two weeks, there’s a lot of criminal justice garbage in our system this session, and I could very well be in Saturday hearings the next couple of weeks because they tend to have weekend meetings because it’s a 30-day constitutional limit. You must adjourn at noon on the 30th day. So I expect I might have some distractions in the next two weeks, but we’ll keep you posted. Either we’re going to record or we won’t. But right now, we plan on recording unless I get trapped in legislative stuff, trying to kill bad bills, and we’ve got a boatload of bad bills this year. [54:40] Andy: Someone says, is there a third option? [54:43] Larry: But I mean, we will let you know if I get trapped where I just can’t get out because I’m… No, I know. [54:51] Andy: But you just said… I said, we either will or we won’t. It’s like, well, yeah. Well, [54:55] Larry: there’s really only the two options, but we could record Wednesday night at midnight. We could. We could. I [55:01] Andy: will be flexible if you need to be as well. So anyway, with that, head over to registrymatters.co for show notes and links everywhere, and email us at registrymatterscast at gmail.com. Leave an old-fashioned voicemail message at 747-227-4477. And as the folks in the live stream chat here have been a part of, they are patrons. And so thank you very much for being that. And you could become one too over at patreon.com slash registrymatters. We are independent creators here. This is just kind of like a little part-time job for us. And having more patrons is better than fewer patrons. And even for a buck a month, that is always helpful to bring the numbers up, which is what we’re trying to do. And those folks can join on the Discord server. Someone just asked me randomly, he’s like, well, how do I get on? Check out the show notes, and you can find a link to it. And that is what we will, and then you can join in the Discord. But also, I’m wearing one of our shirts tonight. Thank you to one of our supporters. I know it doesn’t show up on camera so well, so I’m like pulling it up all to my chin and whatnot. But this is an awesome one. This is one of my favorite ones, because this is what you want everyone to say, Larry. Are you looking at the screen by chance? I am. It’s not punishment. It’s a civil regulatory scheme. Beautiful. No one in the, you could wear this to the mall or the food court. No one’s going to know what the hell you’re talking about. So pick those up at fypeducation.org slash shop. Anything else? Any final words? No, we’ll see you in a week or two. A week or two or three. Have a great night, Larry. I’ll talk to you soon. Good night. [56:50] Announcer: You’ve been listening to F-Y-P.
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