Opinion
Case No. 3:22-cv-453
05-03-2023
George MILLION, Plaintiff, v. David B. RAUSCH, Director of the Tennessee Bureau of Investigation, in his official capacity, Defendant.
William S. Lockett, Jr., Knoxville, TN, for Plaintiff. Elizabeth Helen Evan, Miranda Jones, Tennessee Attorney General's Office, Nashville, TN, Mallory Kathryn Schiller, Dickinson Wright, PLLC (Nashville), Law Enforcement and Special Prosecutions Division, Nashville, TN, for Defendant.
William S. Lockett, Jr., Knoxville, TN, for Plaintiff. Elizabeth Helen Evan, Miranda Jones, Tennessee Attorney General's Office, Nashville, TN, Mallory Kathryn Schiller, Dickinson Wright, PLLC (Nashville), Law Enforcement and Special Prosecutions Division, Nashville, TN, for Defendant.
MEMORANDUM OPINION
TRAVIS R. MCDONOUGH, UNITED STATES DISTRICT JUDGE
Before the Court is a partial motion to dismiss filed by Defendant David B. Rausch, in his official capacity as Director of the Tennessee Bureau of Investigation ("TBI") (Doc. 23). For the reasons set forth below, TBI's motion (id.) will be GRANTED IN PART and DENIED IN PART.
This Court has summarized the background of this case, including the development of SORVTA over time and its impact on Million, in the memorandum opinion accompanying its preliminary-injunction order (Doc. 22). Because neither party has objected to the Court's summary, it will continue to rely on it, in part, for purposes of this motion.
A. The Evolution of Tennessee's Sex Offender Registration and Monitoring Laws
i. Tennessee's Sexual Offender Registration and Monitoring Act of 1994 ("SORMA")
In 1994, the Tennessee General Assembly enacted Tennessee's Sexual Offender Registration and Monitoring Act ("SORMA"), which charged the Tennessee Bureau of Investigation ("TBI") with "establish[ing], maintain[ing], and updat[ing] a centralized record system of sexual offender registration and verification information." 1994 Tenn. Pub. Acts ch. 976, § 7(a). SORMA obligated qualifying "sexual offenders" to register within ten days of release without supervision from probation, parole, or incarceration. Id. § 4. Starting in 1994, registrants had ten days to complete and return registration and monitoring forms sent to them by TBI. Id. § 5. A change of residence, even if temporary, also triggered a ten-day deadline to complete a form. Id. § 4. The majority of the information reported on such forms was kept confidential. Id. § 7(c). If a registrant was found to have violated SORMA, he could be charged with a misdemeanor for a first offense and a felony for subsequent offenses. Id. § 9. ii. Tennessee Sexual Offender and Violent Sexual Offender Registration , Verification , and Tracking Act of 2004 ("2004 SORVTA")
Following a series of amendments, SORMA was ultimately repealed and replaced with the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Trafficking Act ("2004 SORVTA") in 2004. 2004 Tenn. Pub. Acts ch. 921, §§ 1-6.
2004 SORVTA required that all registrants make regular in-person reports to law-enforcement agencies, provide updates to certain living and working changes within forty-eight hours, and pay administrative fees. Tenn. Code Ann. §§ 40-39-203(a), -204(b)-(c). 2004 SORVTA also codified a tiered classification system, distinguishing "violent sexual offenders"—a class of individuals convicted of certain offenses—from "sexual offenders." 2004 Tenn. Pub. Acts ch. 921, § 1(23)-(24). With the label of "violent sexual offender" came heightened registration requirements; 2004 SORVTA mandated that this class of registrants verify their information even more frequently than other registrants and that they would remain on the registry for life. Tenn. Code Ann. § 40-39-204(c). Violations of 2004 SORVTA are felony offenses for all registrants. Id. § 40-39-208(b).
iii. Subsequent Amendments
With each new amendment, the Tennessee General Assembly continued to tack on restrictions, resulting in a current version of the statute that is far more comprehensive than any of its prior forms. In 2008, for instance, the act was amended to restrict registrants' ability to live, work, and exist in proximity of schools, playgrounds, and other facilities, as well as their ability to take on work that puts them in direct and unsupervised contact with minors. See 2008 Tenn. Pub. Acts, ch. 1164, §§ 11-13. Since 2008, the act has also required registrants to report any change in their "electronic mail address information, any instant message, chat or other Internet communication name or identity information that the person uses or intends to use" to law enforcement within three days. See 2008 Tenn. Pub. Acts, ch. 979, §§ 1-3. Three years later, restrictions to entering libraries and traveling outside the country were appended. See 2011 Tenn. Pub. Acts, ch. 287; 2011 Tenn. Pub. Acts, ch. 266, § 1. In 2014, the Tennessee General Assembly added a new rung on the sex-offender-registry hierarchy: "offenders against children." 2014 Tenn. Pub. Acts ch. 770 § 1, 2. Despite not necessarily falling into the "violent sexual offenders" category, this group of offenders also became subject to the lifetime registration requirements. Id. Additional limitations on movement were also incorporated; registrants became banned from living or working within 1,000 feet of schools, daycare centers, public parks, playgrounds, recreation centers, or public athletic fields. 2014 Tenn. Pub. Acts ch. 992, § 1. In 2015, the legislature added a prohibition on a registrant being alone with children other than his own in a "private area." See 2015 Tenn. Pub. Acts, ch. 516.
The current form of the Tennessee Sexual Offender and Violent Sexual Offender Registration and Tracking Act of 2004 ("SORVTA" or "the Act") requires all registrants included in the class of "violent sexual offenders," which now encompasses the categories of "sexual offenders who prey on children" and "repeat sexual offenders," to register for life. Tenn. Code Ann. §§ 40-39-201(b)(1), 40-39-202(20), (30)-(31), 40-39-207(g)(2). Members of the other group of registrants—"sexual offenders"—may petition to be removed from the registry after ten years, but removal hinges on an evaluation based on a variety of factors, including a registrant's record of compliance with SORVTA's requirements. The offender classification TBI has assigned to a registrant is displayed on his driver's license, which must be carried with him at all times. Id. §§ 55-50-353, 40-39-213.
The Act also requires registrants to submit personal information—including his home address, license-plate number, employer address, and photograph—which, as provided by the Act, "shall be considered public information" available through a web page. Id. § 40-39-206(d). Changes in information, particularly pertaining to a registrant's residence and employment, must be updated in person within 48 hours. Id. § 40-39-203(a)(1), (4), (6). Failure to do so constitutes a Class E felony. Id. § 40-39-208(b).
A first offense is "punishable by a fine of not less than three hundred fifty dollars ($350) and imprisonment for not less than ninety (90) days." Tenn. Code Ann. § 40-39-208(c). A second violation "is punishable by a fine of not less than six hundred dollars ($600) and imprisonment for not less than one hundred eighty (180) days." Id. § 40-39-208(d). Any subsequent violations are "punishable by a fine of not less than one thousand one hundred dollars ($1,100) and imprisonment for not less than one (1) year." Id. § 40-39-208(e).
Finally, SORVTA imposes a number of restrictions on a registrant's movement by establishing geographic exclusion zones. For instance, registrants cannot knowingly
(A) Be upon or remain on the premises of any building or grounds of any public school, private or parochial school, licensed day care center, other childcare facility, public park, playground, recreation center or public athletic field available for use by the general public in this state when the offender has reason to believe children under eighteen (18) years of age are present;Id. § 40-39-211(d)(1). Violations are a Class E felony. Id. § 40-39-211(f).
(B) Stand, sit idly, whether or not the offender is in a vehicle, or remain within one thousand feet (1,000') of the property line of any building owned or operated by any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center or public athletic field available for use by the general public in this state when children under eighteen (18) years of age are present, while not having a reason or relationship involving custody of or responsibility for a child or any other specific or legitimate reason for being there; or
(C) Be in any conveyance owned, leased or contracted by a school, licensed day care center, other childcare facility or recreation center to transport students to or from school, day care, childcare, or a recreation center or any related activity thereof when children under eighteen (18) years of age are present in the conveyance.
A first offense is "punishable by a fine of not less than three hundred fifty dollars ($350) and imprisonment for not less than ninety (90) days." Tenn. Code Ann. § 40-39-211(g)(1). The second violation "is punishable by a fine of not less than six hundred dollars ($600) and imprisonment for not less than one hundred eighty (180) days." Id. § 40-39-211(g)(2). Subsequent violations are "punishable by a fine of not less than one thousand one hundred dollars ($1,100) and imprisonment for not less than one (1) year." Id. § 40-39-211(g)(3). A violation that is "due solely to a lack of the written permission required" is punishable only by fine. Id. § 40-39-211(g)(4).
B. Plaintiff's Background
In 1993, before Tennessee's sex-offender registry was adopted, Plaintiff George Million was charged with committing a "lewd and lascivious act" in the presence of a minor in violation of Florida law. (Doc. 7, at 5); see Fla. Stat. Ann. § 800.04. Million was never convicted. (Doc. 7, at 1.) Instead, he agreed to a withheld adjudication, which is Florida's equivalent of a pretrial diversion. (Id. at 5.)
After moving to Tennessee in 2006, Million checked in with TBI about his registration requirements in the state. (Id.) According to Million, the former registry supervisor, Pam Beck, advised him that he did not need to register in Tennessee. (Id.) It was not until over fifteen years later, in January 2022, that Million was arrested for failing to comply with SORVTA. (Id.) TBI initially classified Million as a "violent sexual offender," despite his charged offense involving neither violence nor a child under age thirteen. (Doc. 18-2, at 4-7.) Within a month of Million filing a preliminary-injunction motion (Doc. 8), TBI mailed him a letter stating it was reclassifying him as a "sexual offender." (Doc. 18-3, at 2.)
According to Million, the Act "subjects [him] to continuous reporting, surveillance, and supervision[,]" and "limits his ability to find housing and employment[,] get an education[,] travel[,] engage in speech activities (including use of the Internet)[,] be free from harassment and stigma[,] and understand what is required of him under the Act." (Doc. 7, at 20.) In terms of his employment, Million claims he and his family have been "punished economically as a result of his being forced to register." (Id. at 24.) Though Million has continued to work as "co-owner of a successful commercial roofing [company,]" he laments the loss of business with "at least two companies that had regularly contracted with [his] company for years" due to his compliance with the Act. (Id. at 24-25.) Million also expresses concerns about the Act's restrictions and obligations as to his internet use. Specifically, he "fears using the Internet" because the Act compels him to disclose all emails and other internet identifiers to law enforcement. (Id. at 28.) For this reason, Million represents he "cannot engage in anonymous political speech on the Internet." (Id. at 29.) Million also notes that, even despite his best efforts, he "is literally unable to comply with the [Act]" due to the impermissibly vague restrictions and obligations he contends it imposes. (Id. at 31.)
On December 19, 2022, Million filed this action in this Court, naming David Rausch, the Director of TBI, as defendant and bringing the following claims: (1) violation of the Ex Post Facto Clause; (2) due-process violation of the fundamental right to work; (3) due-process violation of the fundamental right to travel; (4) violation of the First Amendment; (5) due-process violation for retroactively enacting punitive legislation; (6) due-process violation for breaching a plea agreement; (7) due-process violation for imposing criminal liability without knowledge; and (8) due-process violation for enforcing a law that is unconstitutionally vague and with which compliance is impossible. (Doc. 1, at 40-46.) Shortly thereafter, Million amended his complaint (Doc. 7) and moved to enjoin TBI from enforcing SORVTA against him, arguing its retroactive enforcement amounts to a violation of the Ex Post Facto Clause (Doc. 8). On February 7, 2023, the Court held a hearing on the motion, during which the parties defended their positions. (Doc. 13.) Three days later, the Court granted the preliminary injunction (Doc. 22), thereby enjoining TBI from enforcing the Act against Million. On February 21, 2023, TBI moved to dismiss all but one—the ex post facto challenge—of Million's claims (Doc. 23). The motion is now ripe for review.
As Rausch is sued in his official capacity, the Court will refer to the defendant in this case as "TBI" throughout this opinion. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ("[O]fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent . . . .").
Million brings the same claims in his amended complaint. (Doc. 7, at 40-46.)
II. STANDARD OF REVIEW
According to Rule 8 of the Federal Rules of Civil Procedure, a plaintiff's complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Though the statement need not contain detailed factual allegations, it must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id.
A defendant may obtain dismissal of a claim that fails to satisfy Rule 8 by filing a motion pursuant to Rule 12(b)(6). On a Rule 12(b)(6) motion, the Court considers not whether the plaintiff will ultimately prevail, but whether the facts permit the court to infer "more than the mere possibility of misconduct." Id. at 679, 129 S.Ct. 1937. For purposes of this determination, the Court construes the complaint in the light most favorable to the plaintiff and assumes the veracity of all well-pleaded factual allegations in the complaint. Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007). This assumption of veracity, however, does not extend to bare assertions of legal conclusions, Iqbal, 556 U.S. at 679, 129 S.Ct. 1937, nor is the Court "bound to accept as true a legal conclusion couched as a factual allegation," Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).
After sorting the factual allegations from the legal conclusions, the Court next considers whether the factual allegations, if true, would support a claim entitling the plaintiff to relief. Thurman, 484 F.3d at 859. This factual matter must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plausibility "is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.' " Id. at 679, 129 S.Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2)).
The standard applying to a motion under Rule 12(c) is the same as that for a motion under Rule 12(b)(6). Fed. R. Civ. P. 12(c). The Court must accept all well-pleaded material allegations of the pleadings of the opposing party as true, and the Court may grant the motion only if the moving party is nevertheless clearly entitled to judgment as a matter of law. JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007). For purposes of this determination, the Court construes the pleadings in the light most favorable to the nonmoving party and assumes the veracity of all well-pleaded factual allegations in the nonmovant's pleading. Thurman, 484 F.3d at 859. This assumption of veracity does not, however, extend to bare assertions of legal conclusions, Iqbal, 556 U.S. at 679, 129 S.Ct. 1937, nor is the Court "bound to accept as true a legal conclusion couched as a factual allegation[,]" Papasan, 478 U.S. at 286, 106 S.Ct. 2932.
III. ANALYSIS
Million's claims are brought pursuant to 42 U.S.C. § 1983, which provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any . . . person . . . to the deprivation of any rights . . . secured by the Constitution and laws [of the United States], shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]To succeed on a claim under § 1983, a plaintiff must show: (1) "that he or she was deprived of a right secured by the Constitution or laws of the United States" and (2) "that the deprivation was caused by a person acting under color of law." Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014) (citations omitted).
Only the first element is at issue in this case, as TBI does not dispute that it was acting under color of law when enforcing SORVTA. (See generally Doc. 24.)
A. Right to Travel and Work (Counts II and III)
TBI first moves to dismiss Million's due-process claims relating to the right to travel and the right to work, arguing that "the Act does not implicate [his] fundamental rights." (Doc. 24, at 4.) Whereas fundamental rights and liberty interests are entitled to a heightened level of constitutional protection, a law implicating a non-fundamental right is subject only to rational-basis review. See Seal v. Morgan, 229 F.3d 567, 575 (6th Cir. 2000); Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). A law survives rational-basis review if there is "any reasonably conceivable state of facts that could provide a rational basis for it." Doe v. Mich. Dep't of State Police, 490 F.3d 491, 503-04 (6th Cir. 2007) (internal quotation marks omitted) (quoting FCC v. Beach Commc'ns, 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)).
i. Right to Travel (Count II)
In Count II of his amended complaint, Million argues that the Act violates his fundamental right to travel. (Doc. 7, at 40.) "[T]he Supreme Court has recognized a protected right to interstate travel," and laws impinging upon this right are subject to strict scrutiny. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 534 (6th Cir. 2007) (citing Saenz v. Roe, 526 U.S. 489, 500, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999)). "A state law implicates the right to travel when it actually deters travel, when impeding travel is its primary objective, or when it uses a classification that serves to penalize the exercise of the right." Id. at 535 (citing Atty. Gen. v. Soto-Lopez, 476 U.S. 898, 903, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986)). If the burden on travel is merely "incidental and negligible," strict scrutiny is not triggered. Id. (citing Town of Southold v. Town of E. Hampton, 477 F.3d 38, 54 (2d Cir. 2007)). To survive strict scrutiny, the law must be "narrowly tailored to a compelling governmental interest." Does v. Munoz, 507 F.3d 961, 964 (6th Cir. 2007) (quoting Seal, 229 F.3d at 574).
Though the Act places restrictions on a registrant's international travel, it does not impede his interstate travel. See Jackson v. Rausch, No. 3:19-cv-377, 2020 WL 7496528, at *5 (E.D. Tenn. Dec. 21, 2020) ("[T]he travel reporting requirements of Tenn. Code Ann. § 40-39-204(h) only apply to international travel . . . . [I]nternational travel, as opposed to interstate travel, is not a fundamental constitutional right[ ] . . . ."). And "[i]nsofar as the Court recognizes a constitutional right to international travel, that right is not so highly protected that it is violated by the passage of a 21-day notification requirement based on the important public purposes underlying the Act." Doe v. Haslam, No. 3:16-cv-02862, 2017 WL 5187117, at *16 (M.D. Tenn. Nov. 9, 2017).
Million argues that the imposition of the Act's "every obligation, restriction, and burden, imposed" whenever he enters Tennessee impedes his right to travel. (Doc. 31, at 11.) But these encumbrances do not amount to an impingement on interstate travel. The Act permits registrants to travel freely from state to state, and the fact they are subject to certain restrictions and obligations when in Tennessee is inapposite. See Haslam, 2017 WL 5187117, at *16 (noting that the exclusion zones established by the Act within the state "are not restrictions on what areas a registered offender may pass through, but on what he can do within those areas[,]" and such restrictions "do not, on their faces, directly restrict or significantly burden the right to local travel"). Because Million has failed to state a plausible claim for violation of his Due Process right to interstate travel, TBI's motion to dismiss Count II will be GRANTED.
ii. Right to Work (Count III)
Million also argues that the Act unlawfully burdens his "ability to engage in the common occupations of life" by "creat[ing] a wholesale barrier to employment" absent any individualized consideration. (Doc. 7, at 41.) "While the 'freedom to choose and pursue a career' is a fundamental right, Wilkerson v. Johnson, 699 F.2d 325, 328 (6th Cir. 1983), there is no 'general right to private employment[,]' Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir. 1999)." Doe v. Rausch, 648 F.Supp.3d 925, 948 (W.D. Tenn. 2023).
Because Million does not allege that the Act violates a fundamental right, its limits on employment are subject only to rational-basis review. See Seal, 229 F.3d at 575. And, as multiple other district courts within the Sixth Circuit have found, the Act's restrictions on registrants' employment are rationally related to Tennessee's legitimate interest in preventing the occurrence of future sexual offenses. See Haslam, 2017 WL 5187117, at *16; Doe v. Rausch, 648 F.Supp.3d at 949; Newsome v. Lee, No. 3:21-cv-00041, 2021 WL 1697039, at *7 (M.D. Tenn. Apr. 29, 2021) ("Plaintiff has not pleaded any facts that allow the Court to draw the inference that Tennessee did not have 'any plausible reason' for enacting [the Act's] employment or residency restrictions."). Further, Million does not even argue he is unable to secure employment; despite expressing concerns about losses his business incurred due to his registration, Million states he is the "co-owner of a successful commercial roofing business." (Doc. 7, at 24.) Thus, Million has failed to state a plausible claim that the Act violates his alleged right to work, and the Court will GRANT TBI's motion to dismiss Count III.
B. First Amendment (Count IV)
TBI also moves to dismiss Million's First Amendment claim, arguing that he misstates the Act's requirements and applies the incorrect standard of review. (Doc. 24, at 16-21; Doc. 32, at 1.) Million brings both facial and as-applied challenges to the Act under the First Amendment. (Doc. 7, at 41-42.)
According to the Act, a registrant must provide law enforcement with "a complete listing of [his] electronic mail address information, including usernames, any social media accounts [he] uses or intends to use, instant message, other Internet communication platforms or devices, and [his] username, screen name, or other method by which [he] accesses these accounts or web sites[.]" Tenn. Code Ann. § 40-39-203(i)(17). A registrant is also obligated to report within three days of changing his "electronic mail address information, any instant message, chat or other internet communication name or identity information that [he] uses or intends to use, whether within or without this state[.]" Id. § 40-39-203(a)(7).
i. As-Applied Challenge
Regarding his as-applied First Amendment challenge, Million argues the Act "substantially interferes with access to the Internet as a forum for speech and completely eliminates [his] opportunities for anonymous Internet speech," interpreting the Act as obligating him to disclose all passwords for his internet accounts. (Doc. 7, at 41.)
As a preliminary matter, the Court notes that nothing in the Act suggests, as Million asserts, registrants must disclose their account passwords to law enforcement officials.
Million also asserts that "the Act's prohibition against [him] '[b]e[ing] upon or remain[ing] on the premises of any building or grounds of any public school [or] public park . . . when the offender has reason to believe children under eighteen (18) are present,' Tenn. Code Ann. § 40-39-211(d)(1)(A) (2016), is overbroad in violation of the First Amendment." (Doc. 7, at 41-42 (cleaned up).) However, Million does not address TBI's arguments as to this aspect of his First Amendment challenge, electing instead of focus on the Act's restrictions on his internet activity. (See Doc. 31, at 3-10.) Nonetheless, the Court finds that Million's First Amendment overbreadth challenge has not been sufficiently pled, as Million fails to elucidate a connection between the Act's limitations on movement and his First Amendment rights. See Doe v. Rausch, 648 F.Supp.3d at 951 (dismissing a plaintiff's First Amendment overbreadth challenge to the Act because he "fails to explain how [the Act's restrictions on movement] infringe on his right to expressive association" or other First Amendment rights).
"[A]n author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment." Doe v. Lee, No. 3:21-cv-00028, 2021 WL 1907813, at *16 (M.D. Tenn. May 12, 2021), opinion clarified, No. 3:21-cv-00028, 2022 WL 1752184 (M.D. Tenn. May 31, 2022) (alteration in original) (quoting McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995)). "[R]egulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny." Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (citation omitted). To withstand this level of scrutiny, a law must be "narrowly tailored to serve a significant government interest[ ] and [ ] leave open ample alternative channels for communication of the information." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (citations and internal quotation marks omitted). Because the Act's reporting requirements burden online speech "without targeting any particular speech by its content[,]" the relevant provisions are content-neutral and thus must be narrowly tailored to serve a significant governmental interest. Haslam, 2017 WL 5187117, at *18.
Million has provided enough facts to allege a plausible as-applied First Amendment challenge to the Act. Unlike the plaintiff in Doe v. Rausch, 648 F.Supp.3d at 950, whose as-applied challenge to the Act was dismissed on account of his "fail[ure] to explain how his internet usage is curtailed or point to any specific [part of the Act] that force[d] him to curtail his internet usage," Million cites specific provisions of the Act and details his concerns that, as a registrant, he is stripped of his online anonymity. (Doc. 7, at 28-29.) Further, Million insists that a lack of anonymity and concern of constant monitoring based on the Act's internet-use provisions will stymie his online activity; because he must divulge all email addresses, usernames, or other internet identities to law enforcement, he asserts he can no longer "engage in anonymous political speech on the Internet." (Id. at 29.) Though it is presently unclear to what degree the Act burdens Million's free speech, allowing the claim to go forward enables the parties to compile a full factual record from which to resolve the issue. See Doe #1 v. Lee, 518 F. Supp. 3d 1157, 1211 (M.D. Tenn. 2021) ("[W]ithout the benefit of a full factual record [the court] was unable to conclude that the provisions in question are sufficiently narrowly tailored to a significant governmental interest."); Doe v. Gwyn, No. 3:17-cv-504, 2018 WL 1957788, at *10 (E.D. Tenn. Apr. 25, 2018) (citations omitted) (noting that the court was unable to resolve an as-applied First Amendment challenge to the Act at the motion-to-dismiss stage because it was "[f]aced only with the bare allegations of the complaint and the Act's language," and thus was "unable to determine how much of a burden the Act imposes on [the] plaintiff's rights to free speech"). Finding Million has pled sufficient facts to allege an as-applied First Amendment challenge to the Act, the Court will DENY TBI's motion to dismiss this claim. See Doe v. Lee, 2021 WL 1907813, at *16 (denying a motion to dismiss plaintiff's as-applied First Amendment claim and noting that "[his] inability to, among other things, speak out against the Act without potentially drawing the ire of law enforcement raises legitimate constitutional concerns").
ii. Facial Challenge
Million also contends that "[t]he Act's requirements to report information about Internet accounts and activity is invalid under the First Amendment [ ] on its face . . . because it is not narrowly tailored to serve a compelling state interest and because it prohibits a substantial amount of protected speech." (Doc. 7, at 41.)
"A law is unconstitutional under the First Amendment if it operates as an outright ban or impermissibly burdens anonymous online speech." Doe #1, 518 F. Supp. 3d at 1207 (citing Sorrell v. IMS Health Inc., 564 U.S. 552, 566, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011)). Though a law is typically only facially unconstitutional when "no set of circumstances exists under which [it] would be valid[,]" United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), the Constitution's affordance of "significant protection" within the First Amendment's "vast and privileged sphere[,]" Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), has erected a lower bar. As the Sixth Circuit has explained, a facial First Amendment challenge turns on whether the law "prohibit[s] a substantial amount of protected speech both in an absolute sense and relative to [the statute's] plainly legitimate sweep[;]" thus, "the ultimate question is one of overbreadth[.]" Carey v. Wolnitzek, 614 F.3d 189, 208 (6th Cir. 2010) (cleaned up) (citation omitted); see Speet v. Schuette, 726 F.3d 867, 872 (6th Cir. 2013) (citations omitted) ("Where a plaintiff makes a facial challenge under the First Amendment to a statute's constitutionality, the 'facial challenge' is an 'overbreadth challenge.' "). "To succeed in an overbreadth challenge, therefore, a plaintiff must 'demonstrate from the text of [the statute] and from actual fact that a substantial number of instances exist in which the [statute] cannot be applied constitutionally.' " Speet, 726 F.3d at 873 (alterations in original) (quoting N.Y. State Club Ass'n v. City of N.Y., 487 U.S. 1, 11, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988)). Though this "overbreadth challenge," as articulated by the Sixth Circuit, poses "a lower hurdle than a typical facial challenge," it is a "strong medicine that is used sparingly and only as a last resort." Doe #1, 518 F. Supp. 3d at 1208 (internal quotation marks omitted) (quoting N.Y. State Club Ass'n, 487 U.S. at 14, 108 S.Ct. 2225). Nonetheless, "[t]he concern that an overbroad statute deters protected speech is especially strong where . . . the statute imposes criminal sanctions." Id. (quoting Doe v. Harris, 772 F.3d 563, 578 (9th Cir. 2014)).
Despite the different nomenclature and origin, the Court understands this test to boil down to an intermediate scrutiny evaluation. That is, "if a defendant can show that the challenged statute withstands whatever level of 'scrutiny' to which it is subject, then it is not substantially overbroad in regard to a facial challenge." Doe #1, 518 F. Supp. 3d at 1210 n.47 (first citing Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 392 (6th Cir. 2005); then citing Project Veritas v. Ohio Election Comm'n, 418 F. Supp. 3d 232, 263-64 (S.D. Ohio 2019); and then citing State v. Casillas, 952 N.W.2d 629, 646 (Minn. 2020)).
As to his facial First Amendment claim, Million fails to raise a plausible claim that a substantial number of instances exist in which the Act's online reporting requirements cannot be constitutionally applied. Rather than endeavor to describe the Act's alleged overbreadth, Million focuses narrowly on the effects the Act's reporting requirements have had on his own speech. In his brief, Million relies on the voluminosity of his complaint and the lenity of the overbreadth standard to carry the day. (Doc. 31, at 4 ("It would be ludicrous to argue that Plaintiff has not met this low [overbreadth] standard, as the Complaint [ ] is 43 pages in length and contains 128 separately numbered paragraphs (before the prayers for relief) alleging daily instances in which the Act cannot be constitutionally applied.").) But despite these representations, the amended complaint (Doc. 7) describes—and, indeed, contains a heading stating as much—only the "impact of the [A]ct on the plaintiff." (Id. at 20.) To the extent Million describes the Act's impact on other registrants' speech, it is only to provide what he (incorrectly) insists is the relevant legal standard: "The Act's requirements to report information about Internet accounts and activity is invalid under the First Amendment both on its face and as applied because it is not narrowly tailored to serve a compelling state interest and because it prohibits a substantial amount of protected speech." (Id. at 41.) Absent any description of the Act's "instances of arguable overbreadth," the Court cannot find Million has presented it with sufficient facts to allege a facial First Amendment challenge. See Glenn v. Holder, 690 F.3d 417, 422 (6th Cir. 2012) ("Without an allegation [that others are affected by the statute's relevant provisions], a court cannot conclude that [the relevant statute] threatens to undermine a substantial number of [their rights]."). For that reason, the Court will GRANT TBI's motion to dismiss Million's facial First Amendment claim.
In his response brief, Million introduces what TBI accurately refers to as a "hybrid due-process-First Amendment" claim. (Doc. 32, at 2.) In essence, Million argues, for the first time, that the Act's alleged violation of a fundamental right—free speech—without notice violates both procedural and substantive due process. (Doc. 31, at 7-10.) Notwithstanding the fact that Million failed to raise this theory in his amended complaint, "[p]rinciples of substantive due process do not provide an alternative path and standard for adjudicating [a] First Amendment claim, as the First Amendment is incorporated to the states through the Fourteenth Amendment." Doe v. Rausch, 461 F. Supp. 3d 747, 774 (E.D. Tenn. 2020) (citing United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938)). Therefore, the claim fails.
C. Retroactivity (Count V)
Million also argues that retroactive imposition of the Act violates the Due Process Clause. (Doc. 7, at 42.) TBI counters that this concern is already captured by Million's ex post facto claim and, alternatively, should be dismissed because of the inapplicability of procedural due process to legislative acts. (Doc. 24, at 8-9.) Beyond summarily advising that this "procedural due process claim should be considered in tandem with the ex post facto prohibition" and broadly discussing the justification for prohibiting ex post facto laws, Million does not independently address his retroactivity due-process claim in his response brief. (Doc. 31, at 8-9.)
To the extent Million is advancing a substantive-due-process retroactivity challenge to the Act, his ex post facto claim is the proper avenue by which to pursue it. See United States v. Lanier, 520 U.S. 259, 272 n.7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) ("[I]f a constitutional claim is covered by a specific constitutional provision . . . the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.") If Million contemplates a procedural-due-process retroactivity challenge, it also fails. See Doe v. Rausch, 461 F. Supp. 3d 747, 774 (E.D. Tenn. 2020) (noting that a registrant's argument "that he was deprived of notice and an opportunity to be heard because he was not given an individualized hearing" is one that "has been repeatedly trod and . . . foreclosed") (first citing Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003); then citing Doe v. DeWine, 910 F.3d 842, 851 (6th Cir. 2018); and then citing Doe v. Rausch, 382 F. Supp. 3d 783, 801 (E.D. Tenn. 2019)). Accordingly, the Court will GRANT TBI's motion to dismiss this claim.
D. Breach of Plea Agreement (Count VI)
Million argues in Count VI of his amended complaint that the Act breaches a "valid plea bargain with the State of Florida in 1993" by retroactively piling on to his agreed-upon punishment. (Doc. 7, at 42-43.) However, he does not appear to respond to TBI's arguments advocating for this claim's dismissal. Notwithstanding Million's apparent abandonment of this claim, the Court finds no reason that TBI, the entity responsible for enforcing the Act, would be liable for breaching an agreement executed by a different entity in a different state. See Jackson, 2020 WL 7496528, at *5 (dismissing a registrant's breach-of-plea-agreement claim upon finding "Plaintiff has presented no allegation or legal argument as to how Defendant, who is only responsible for enforcing a Tennessee statute, can be liable for a breach of a promise made by another entity"). Accordingly, the Court will GRANT TBI's motion to dismiss Million's breach-of-plea-agreement claim.
E. Criminal Liability Without Actual Knowledge, Vagueness, and Impossibility (Counts VII, VIII)
Million raises two final due-process challenges relating to the Act's limitations on registrants' movement, arguing that the Act imposes criminal liability without requiring proof or actual knowledge of duty to comply with the Act for passive conduct that does not "alert the doer to the consequences of his deed," is unconstitutionally vague and, relatedly, impossible to comply with. (Doc. 7, at 43-44.) TBI responds that the Act cannot punish passive conduct due to its inclusion of a "knowledge requirement" and that it is "sufficiently clear to give a person of ordinary intelligence fair notice[.]" (Doc. 24, at 12-13.) The provisions at issue make it a felony offense for registrants to knowingly live or work within 1,000 feet of the property line of a number of facilities and to stand, sit idly, or remain within an exclusion zone if they have reason to believe minors are present. See Tenn. Code Ann. §§ 40-39-211(a)(1), (d)(1).
"Holding an individual criminally liable for failing to comply with a duty imposed by statute, with which it is legally impossible to comply, deprives that person of his due process rights." Haslam, 2017 WL 5187117, at *19 (quoting Doe v. Snyder, 101 F. Supp. 3d 722, 724 (E.D. Mich. 2015)). And if a criminal statute fails to give a person of ordinary intelligence fair notice of the conduct it punishes or is so devoid of standards that it invites arbitrary enforcement, it is unconstitutionally vague. Johnson v. United States, 576 U.S. 591, 595, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). "Vagueness challenges are as applied and therefore focus on whether the statute is vague in light of the plaintiff's particular circumstances." Doe v. Lee, No. 3:21-cv-010, 2022 WL 452454, at *6 (E.D. Tenn. Feb. 14, 2022) (citing United States v. Kernell, 667 F.3d 746, 750 (6th Cir. 2012)). To avoid arbitrary and discriminatory enforcement, a law "must provide explicit standards for those who apply them." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).
Million has pled sufficient facts to plausibly allege that the Act may criminalize passive behavior without actual knowledge, may be unconstitutionally vague in its delineation of exclusion zones, and may contain provisions with which compliance is impossible. Specifically, Million argues that the property boundaries of exclusion zones are "impossible for ordinary people to identify[,]" and identification is difficult "even for experts with sophisticated mapping technology" due to the zones' irregular shaping and that the zones "can change on a moment's notice" with a child's sudden presence. (Doc. 7, at 36-37.) Despite the provision's inclusion of a "knowledge" requirement, Million also notes that, by the language of the statute, his "mere presence" in an indefinable exclusion zone provides probable cause for his arrest. (Id. at 36.) Moreover, given the fact-intensive nature of these claims, a more developed record is required for the Court to ascertain the ease (or lack thereof) with which registrants are able to comply with the Act's provisions. See Haslam, 2017 WL 5187117, at *18 (finding "[t]he prohibitions [the Act] placed on Plaintiffs [to be] sufficiently unclear on their face" to allow their vagueness challenge to survive a motion to dismiss and noting that "the Court's consideration of [the] claim will be substantially aided by the creation of a factual record"), *19 ("The question of whether complying with the Exclusion Zones is functionally impossible is simply too fact-dependent to resolve at this stage. Without a full picture of how extensive [Exclusion] Zones are and how greatly they burden a registered offender's ability to engage in ordinary, unavoidable life activities, the Court cannot rule on [the claim]."); Lee, 2022 WL 452454, at *6 ("These claims, [impossibility, vagueness, and criminal liability without knowledge,] . . . are largely fact-dependent. Thus, the factual record must be more developed before the Court can rule on these due process claims.") (citations omitted); Jackson, 2020 WL 7496528, at *7 ("[A]s these claims[, impossibility, vagueness, and criminal liability without knowledge,] are largely fact-dependent, the factual record must be more developed before the Court can rule on these due process claims.") (citations omitted). Accordingly, the Court will DENY TBI's motion to dismiss Counts VII and VIII.
IV. CONCLUSION
For the aforementioned reasons, TBI's partial motion to dismiss (Doc. 23) is hereby GRANTED IN PART and DENIED IN PART. Million's claims for due-process violations of the fundamental rights to work and travel, due-process retroactivity claim, due-process plea-agreement claim, and his facial First Amendment challenge are hereby DISMISSED. Million's ex post facto claim, as-applied First Amendment challenge, and due-process challenges for imposition of criminal liability without knowledge, for vagueness, and for impossibility will all proceed.
SO ORDERED.