Your Reputation and Standing are Protected Liberties

When the United States government damages a person’s reputation by implying without any specific proof about that singular person that they are dangerous simply because they are members of a group that the legislative branch of government has chosen to disfranchised. Then it is time for the courts to step in and make the government prove on each and every occasion that each individual of that group, Under all circumstances is in fact, dangerous!. Without that proof of future dangerousness, which can not be proven, then you can say that a person’s reputation and standing in the international community have been damaged. and that the government is in fact, responsible and should be held accountable for that damage.

A person’s reputation and standing in the community are a protected liberty interest as described by United States Supreme Court rulings as laid out in the Hawaii Supreme Court decision in State of Hawaii v Bani. Below is an excerpt from the Hawaii Supreme Court decision.

The United States Supreme Court has previously recognized that a person’s reputation is a protected liberty interest under the federal due process clause. Wisconsin v. Constantineau, 400 U.S. 433 (1971) (hereafter “Constantineau”); Board of Regents v. Roth, 408 U.S. 564 (1972) (hereafter “Roth”).

In Constantineau, the State of Wisconsin authorized the posting of a notice prohibiting the sale or gift of liquor to any person who “‘by excessive drinking’ produces described conditions or exhibits specified traits, such as exposing himself or family ‘to want’ or becoming ‘dangerous to the peace’ of the community.” On appeal, the Constantineau Court recognized that “[i]t would be naive not to recognize that such ‘posting’ or characterization of an individual will expose him to public embarrassment and ridicule.” 400 U.S. at 436. The Court therefore held that a protectible liberty interest is implicated “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him [or her.]” Id. at 437.

One year later, the Court again recognized a person’s liberty interest may be implicated by damage to his or her reputation. See Roth, 408 U.S. at 573. The plaintiff in Roth, a university professor, alleged that “the failure of University officials to give him notice of any reason for non-retention and an opportunity for a hearing violated his right to procedural due process of law.” Id. at 569. The Roth Court reasoned that in declining to hire the plaintiff, the state had neither advanced “any charge against him that might seriously damage his standing and associations in the community” nor “imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” Id. at 573. The Roth Court noted, however, that “a different case” would have been presented had the state either damaged the plaintiff’s reputation or imposed a stigma on him. Id. at 573-74.

However, in Paul v. Davis, 424 U.S. 693, reh’g denied, 425 U.S. 985 (1976), the Court clarified that “reputation alone, apart from some more tangible interests such as employment, is [n]either ‘liberty’ [n]or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.” Id. at 701. The plaintiff in Paul alleged a deprivation of liberty without due process of law after the circulation of flyers publicizing his conviction for shoplifting and labeling him an “active shoplifter.” Id. at 712. According to the Paul Court, because the plaintiff’s harm was not accompanied by the alteration of “a right or status previously recognized by state law,” there was no deprivation of a protectible liberty interest. Id. at 711-12.

Paul has been interpreted to require “stigma plus” in order to establish a constitutional deprivation. See, e.g., Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994). In other words, “an allegation that government dissemination of information or government defamation has caused damage to reputation, even with all the attendant emotional anguish and social stigma, does not in itself state a cause of action for violation of a constitutional right, infringement of more ‘tangible interests’ must be alleged as well”.
Borucki v. Ryan, 827 F.2d 836, 842-43 (1st Cir. 1987); see also Marshall v. University of Hawaii, 9 Haw. App. 21, 32, 821 P.2d 937, 948 (1991).

For the reasons discussed below, we conclude that Bani has shown substantial injury to both his reputation and other “tangible interests.” This case does not therefore require us to determine whether a person’s reputation alone constitutes a protected liberty interest under the Hawaii Constitution. Suffice it to say that Bani has established that the public notification provisions of HRS chapter 846E implicate a liberty interest protected by the due process clause of the Hawaii Constitution.

First; Bani has demonstrated that the public notification provisions of HRS chapter 846E will likely cause harm to his reputation. The statute effectively brands Bani a “sex offender”, i.e., a public danger, for life. See Doe v. Pataki, 3 F. Supp. 2d 456, 467 (S.D.N.Y. 1998) [here  in after Pataki III]; Doe v. Attorney General, 686 N.E.2d 1007, 1013 (Mass. 1997) [hereinafter Doe II];see also Bohn v. County of Dakota, 772 F.2d 1433, 1436 n.4 (8th Cir. 1985), cert. denied, 475 U.S. 1014 (1986).

Specifically, HRS chapter 846E’s public notification provisions imply that Bani is potentially dangerous, thereby undermining his reputation and standing in the community. Doe v. Poritz, 662 A.2d 367, 419 (N.J. 1995); cf. Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) (noting that “[o]ne need only look to the increasingly popular ‘Megan’s laws’, whereby states require sex offenders to register with law enforcement officials, who are then authorized to release information about the sex offender to the public, to comprehend the stigmatizing consequences of being labeled a sex offender”). Indeed, public notification that Bani is a convicted sex offender implicitly announces that, in the eyes of the State, Bani presents a risk of committing another sex offense. Doe II, 686 N.E.2d at 144.

Second; Bani will foreseeably suffer serious harm to other “tangible interests” as a result of registration as a sex offender. Potential employers and landlords will thus foreseeably be reluctant to employ or rent to Bani once they learn of his status as a “sex offender”. See Pataki III, 3 F. Supp. 2d at 468; W.P. v. Poritz, 931 F. Supp. 1199, 1219 (D.N.J. 1996), rev’d, 119 F.3d 1077 (3d Cir. 1997), cert. denied, 522 U.S. 1110 (1998) [hereinafter Verniero]; see also In re Reed, 663 P.2d 216 (Cal. 1983) (quoting In re Birch, 515 P.2d 12 (Cal. 1973)). (8). Indeed, the public disclosure provisions of HRS chapter 846E can adversely affect an offender’s personal and professional life, employability, associations with neighbors and choice of housing. Noble v. Board of Parole and Post-Prison Supervision, 964 P.2d 990, 995-96 (Or. 1998); State v. Myers, 923 P.2d 1024, 1041 (Kan. 1996), cert. denied, 521 U.S. 1118 (1997); Rowe v. Burton, 884 F. Supp. 1372, 1378 (D. Alaska 1994), appeal dismissed, 85 F.3d 635 (9th Cir. 1996) (personal and professional lives); Artway v. Attorney General, 876 F. Supp. 666, 668 (D.N.J. 1995),aff’d in part and vacated in part, 81 F.3d 1235 (3d Cir.), reh’g denied, 83 F.2d 594 (1996) (employability and associations with neighbors); Robin L. Deems, Comment, California’s Sex Offender Notification Statute: A Constitutional Analysis, 33 San Diego L. Rev. 1195 (1996) (citing Jenny A. Montana, Note, An Ineffective Weapon in the Fight Against Child Sexual Abuse: New Jersey’s Megan’s Law, 3 J. L. & Pol’y 569, 580-81 (1995)) (choice of housing). In addition, public disclosure may encourage vigilantism and may expose the offender to possible physical violence. (9)See, e.g., Poritz, 662 A.2d at 430-31 (Stein, J., dissenting); Pataki I, 940 F. Supp. 603, 608-11 (S.D.N.Y. 1996); Doe v. Gregoire, 960 F. Supp. 1478, 1485 (W.D. Wash. 1997). Indeed, [w]hen a government agency focuses its machinery on the task of determining whether a person should be labeled publicly as having a certain undesirable characteristic or belonging to a certain undesirable group, and that agency must by law gather and synthesize evidence outside the public record in making that determination, the interest of the person to be labeled goes beyond mere reputation. . . . [I]t is an interest in avoiding the social ostracism, loss of employment opportunities, and significant likelihood of verbal and, perhaps, even physical harassment likely to follow from designation.

Noble, 964 P.2d at 995-96. Therefore, HRS chapter 846E is highly likely to cause irreparable harm to Bani’s reputation and professional life, employability, associations with neighbors, and choice of housing.

The Paul Court recognized that, in addition to the interests recognized by state law, “[t]here are other interests . . . protected not by virtue of their recognition by the law of a particular State but because they are guaranteed in one of the provisions of the Bill of Rights which has been ‘incorporated’ into the Fourteenth Amendment.” Paul, 424 U.S. at 710 n.5. As an example, in Bohn, 772 F.2d at 1436 n.4, the United States Court of Appeals for the Eighth Circuit found a protectible interest in reputation where the stigma of being identified as a child abuser was tied to the protectible interest in privacy and autonomy of family relationships. See also Poritz, 662 A.2d at 419 (holding that the stigma resulting from notification that petitioner was a sex offender was tied to the protectible interest in privacy inasmuch as he had an interest in his reputation); Neal, 131 F.3d at 830 (holding that Hawaii’s designating of prisoner as “sex offender” without hearing and requiring successful completion of treatment program as precondition for parole eligibility together implicated a liberty interest protected by the right to due process of law).

Under these circumstances, we are persuaded by the following considerations that Bani has a liberty interest protected by the Hawaii Constitution that entitles him to procedural due process: (1) the public disclosure of accumulated and synthesized personal information that would not otherwise be easily available; (2) the potential harm to his personal and professional life; (3) the foreseeable harm to his reputation; and (4) the statutory branding of him as a public danger, i.e., as a sex offender. We note that the “interest cannot be captured in a single word or phrase. It is an interest in knowing when the government is moving against you and why it has singled you out for special attention. It is an interest in avoiding the secret machinations of a Star Chamber.” Noble, 964 P.2d at 995.

9 comments for “Your Reputation and Standing are Protected Liberties

  1. Paul
    March 14, 2016 at 5:08 pm

    Damn! Too bad this is a state case and not a federal case. Will this ruling apply to all Hawaii registrants currently on the public registry?

  2. The Inquiring Mind
    March 18, 2016 at 6:38 am

    A peripheral (unrelated to above article) question if I may: Why isn’t it that legislators, judges and proponents of SO laws address the issue of the “collateral consequences” SO laws have on the families of registrants? I have searched high and low on the blogs for their take on this issue but cannot find anything. Anyone have anything on this?

  3. Scott
    March 18, 2016 at 4:17 pm

    As long as we have computers and a right to know law, nobody is protected. I might add we also live in a stool pigeon nation where everyone knows everyone elses business and they don,t care how much it hurts when things are repeated.

  4. kayt
    March 19, 2016 at 7:44 am

    The legislators, judges and proponents of SO laws absolutely DO address the issue of the “collateral consequences” SO laws have on the families of registrants. Their opinion is that they just don’t care and to have any sympathy for a convicted sex offender is political suicide. They just won’t touch it. They wouldn’t touch these issues even if they did have a heart!

    That’s why we have groups who are fighting for our rights so that our families can lead decent lives. California RSOL and WAR are in the forefront but there are many others. If you don’t belong to any groups, I encourage you to join groups so that you can be more aware of what is happening all the way around. I belong to Sosen to help in any way that I can to make life better for all of us who are the convicted and the victims of collateral damage. I also belong to several other organizations. WAR is one of them (Women Against Registries) and I follow California RSOL closely. There are many other groups and there is no shortage of news or comments within the groups. There is a list on this front page of Sosen with links to many such groups.

    The bottom line is that we need to work together to make the legislators, judges and proponents of SO laws care enough to address the issues of collateral consequences of SO laws so that we as families can have decent homes, decent jobs and provide for our families. We need to build ways that our children can live like normal children. Most of us have lost so much and we need a way to rebuild our lives. We can’t do this alone, we need each other! We need to fight for our rights as human beings and Americans.

    • jan
      April 17, 2016 at 9:25 am

      Quite a few Federal and state NY Judges have spoken out against registers and the viewing being a crime, and feel it is against civil rights, and then find themselves outnumbered by many outspoken liberals who are determined to make it mandatory when it comes to registries and offenses. Many defendants were not even involved in this type of offense in the first place but came across a link on p2p and ended up in the nets spider-web with some 34 Federal servers, containing various links to illicit images, these person had no desire nor were involved prior, and had no prior knowledge or never committed a crime, but unfortunately, opened the p2p and were charged with a fed.crime, that lead to an arrest,incarceration and prison. Yes, It was illicit and place there by the feds in an embedded link, like the spider to the fly,just waiting to pounce. You can go to any number of bloggers that talk about this. Illicit images all placed there by the feds. Now whose corrupt? Many Federal Judges are keenly aware of these pertinent facts, illegal images attached to many if not all adult sites. Legislators and Justices will not stand up and help fight against this crime which was intentionally created by the feds themselves, nor defend the defendants Constitutional or Civil rights, These justices seem to just go along being part of the problem, not part of the solution, then retire with full pensions, never standing up for decency nor the defendants. I am not saying anything about the other victims here that is another issue, and thousands upon thousands of cases are never won nor does anyone speak out about this to the public. Its like being castrated over and over, and many persons are now much older or deceased. The government will not take those illicit images off their web servers, in each state. So now where does the public turn to when the odds of becoming entangled are so great. Justice is not serving the defendants nor the public. Its a charade and a maze and what is involved is money. Not honesty or integrity or fair play.

  5. The Inquiring Mind
    March 21, 2016 at 6:24 am

    I agree kayt. Now, let me put this out there for your consideration. If we go by Websters Collegiate Dictionary the word “Offend” is a verb meaning…” to do wrong : to be against what people believe is acceptable or proper…” correct? Now, if you connect the suffix “er” which in parts of speech, is present, future tense, to the verb offend to make it “Offender”, what you have is the designation: Someone who, or, something that does, provides, or is involved with a particular action or behaviour. For example, Police Offic(er) or Fire Figth(er), or Farm(er). Meaning this is who they are and what they do on a continuing bases. Point? when you designate someone a Sex Offend(er), this signals to the general pubilc that this is what this person is and what this person does on a continuing bases and thereby is a continuing threat to the public. Not that this person once commit(ed), ED, meaning past tense and in some case DECADES ago his/her crime. So there is no wonder the popularity of SO laws with state and federal legislators willingness to upsurp the US Constution when it comes to people designated or “Scarlet Lettered” Sex Offend(er). What a great Public Relations ploy on the part of proponents of SO laws. No one wants a person who commits and continue to commit a crime that is more reviled than murder. Seriously. I heard a well know comic on a radio talk say “….If I just had to have a criminal case I would rather have a murder case than a sex offense. With a murder case i can get a fair trial, no such luck with a sex offense…” Yes, this person, who you have seen in many movies actually said this. Point? As long as SOs are labled sex offend(er)s, meaning, that’s who they are and what they continue to do, they will be forever strapped under the bottom or relegated to the margins of society.

    • Dave
      March 22, 2016 at 7:30 am

      I have always wounder that myself. With today’s PC society it amazes me and really shows how hated this group of individuals are. What ever happened to equal rights?

  6. kayt
    March 22, 2016 at 6:18 pm

    The haters crowds of everything is on the internet sitting behind their PC’s. But back to the name calling, that’s what crazy people love and the label “sex-offender” just draws out haters from everywhere and of course that’s what the term was meant to do so that people would be drawn to the registry. (opinion of one.)

  7. Kayt
    March 26, 2016 at 1:13 pm

    >>>Point? As long as SOs are labled sex offend(er)s, meaning, that’s who they are and what they continue to do, they will be forever strapped under the bottom or relegated to the margins of society.<<<<

    Exactly! And that's why they use the word, "Sex Offender." It is an intended scarlet letter.

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