1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0207p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

J OHN D OES #1–5; M ARY D OE , Plaintiffs-Appellees (15-1536) Plaintiffs-Appellants/Cross-Appellees (15-2346 & 15-2486),

v

. R ICHARD S NYDER , Governor of the Stat e of Michigan, in his official capacity; K RISTE E TUE , Director of the Michigan State Police, in her official capacity, Defendants-Appellants (15-1536), Defendants-Appellees/Cross-Appellants (15-2346 & 15-2486). ┐ │ │ │ │ │ │ │ │ │ │ │ ┘ Nos. 15-1536/2346/2486

Appeal from the United St ates District Court for the Eastern District of Michigan at Detroit. No. 2:12-cv-11194—Robert H. Cleland, District Judge. Argued: January 27, 2016 Decided and Filed: August 25, 2016 Before: MERRITT, BATCHELDER, and DONALD, Circuit Judges.

_________________ COUNSEL

ARGUED: Erik A. Grill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants in 15-1536 and for Appellees/Cross-Appellants in 15-2346 and 15- 2486. Miriam J. Aukerman, AMERICAN CIVI L LIBERTIES UNION FUND OF MICHIGAN, Grand Rapids, Michigan, for Appellees in 15 -1536 and for Appellants/Cross-Appellees in 15- 2346 and 15-2486. ON BRIEF: Erik A. Grill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants in 15-1536 and fo r Appellees/Cross-Appellants in 15-2346 and 15-2486. Miri am J. Aukerman, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Grand Rapids, Michig an, Michael J. Steinberg, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detr oit, Michigan, Paul D. Reingold, MICHIGAN CLINICAL LAW PROGRAM, Ann Arbor , Michigan, William W. Swor, Detroit, Michigan, for Appellees in 15- 1536 and for Appellants/Cross- Appellees in 15-2346 and 15- 2486. Christian J. Grostic, KUSHNER & HAMED CO., LPA, Cleveland, Ohio, Candace C. 

### >Nos. 15-1536/2346/2486 Does, et al. v. Snyder, et al. Page 2

Crouse, PINALES STACHLER YOUNG BURRELL & CROUSE CO., LPA, Cincinnati, Ohio for Amicus Curiae in 15-1536. Liisa R. Sp eaker, SPEAKER LAW FI RM PLLC, Lansing, Michigan, Sonja B. Starr, UNIVERSIT Y OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, Douglas Mullkoff, KESSLER, MULLKOFF & HOOBERMAN LLP, Ann Arbor, Michigan, Craig Jaquith, OHIO PUBLIC DEFENDER, Columbus, Ohio, N.C. Deday Larene, LARENE & KRIGER, P.L.C., Detroit, Mi chigan, Jennifer M. Kinsley, NORTHERN KENTUCKY UNIVERSITY, Highland Heights, Ke ntucky, for Amici Curiae in 15-2346 and 15- 2486.

_________________ OPINION

_________________ ALICE M. BATCHELDER, Circuit Judge. Like many states, Michigan has amended its Sex Offender Registration Act (SORA) on a numb er of occasions in recent years for the professed purpose of making Michigan communiti es safer and aiding law enforcement in the task of bringing recidivists to justice. Thus, what began in 1994 as a non-public registry maintained solely for law enforcement use, see Mich. Pub. Act 295, § 10 (1994), has grown into a byzantine code governing in minute detail the lives of the state’s sex offenders, see Mich. Comp. Laws § 28.723, et seq. Over the first decade or so of SORA’s existence, most of the changes centered on the role played by the registry itself. In 1999, for example, the legislature added the requirement that sex offenders register in person (either quarterly or annually, depending on the offense) and made the registry available online, providing the public with a list of all registered sex offenders’ names, addre sses, biometric data, a nd, since 2004, photographs.
See Mich. Pub. Act. 85 §§ 5a(4), 8(2), 10(2)( 3) (1999); Mich. Pub. Acts 237, 238 (2004). Michigan began taking a more aggressive t ack in 2006, however, when it amended SORA to prohibit registrants (w ith a few exceptions, see Mich. Comp. Laws § 28.734–36) from living, working, or “loitering” 1 within 1,000 feet of a school. See Mich. Pub. Acts 121, 127 (2005). In 2011, the legislature added the requirement that re gistrants be divided into three tiers, which ostensibly correlate to current dangerousne ss, but which are base d, not on individual assessments, but solely on the crime of conviction. See Mich. Pub. Acts 17, 18 (2011). The

1 SORA defines “loiter” as “to remain [in a place] for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors.” Mich. Comp. Laws § 28.733(b)).Nos. 15-1536/2346/2486 Does, et al. v. Snyder, et al. Page 3

2011 amendments also require all registrants to appear in person “immediately” to update
information such as new vehicl es or “interne t identifiers” ( e.g. , a new email account). See id. The 2006 and 2011 amendments apply retroactively to all who were required to register under
SORA. See Mich. Pub. Act 46 (2006); Mich. Pub. Acts 17, 18 (2011). Violations carry heavy criminal penalties. See Mich. Comp. Laws § 28.729.

The Plaintiffs in this case—identified he re only as five “John Does” and one “Mary Doe”—are registered “Tier III” sex offenders current ly residing in Michigan. It is undisputed on appeal that SORA’s 2006 and 2011 amendments appl y to them retroactivel y. That law has had a significant impact on each of them that reaches far beyond the stigma of simply being identified as a sex offender on a public registry. As a resu lt of the school zone restrictions, for example, many of the Plaintiffs have had trouble finding a home in which they can legally live or a job where they can legally work. These restrictions have also kept thos e Plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept Plaintiffs from vis iting public playgrounds with their children for fear of “loitering.” Plaintiffs ar e also subject to the frequent inconvenience of reporting to law enforcement in person whenever they change residences, change employment, enroll (or unenroll) as a student, change their name, register a new email address or ot her “internet identifier,” wish to travel for more than seven days, or buy or begin to use a vehicle (or cease to own or use a vehicle). See Mich. Comp. Laws §§ 28.722(g), 725(1).
Plaintiffs sued Michigan Governor Richard S nyder and Colonel Kriste Etue, the director Michigan’s state police (collect ively, “Michigan”), challengi ng SORA’s validity on a number of different grounds, including that portions of SORA are unconstitutionally vague, that its requirements should not be construed as creating stri ct liability offenses, that SORA violates the right to free speech guaranteed by the First Amen dment, and that it violates the Fourteenth Amendment by imposing oppressive restrictions on Plai ntiffs’ ability to parent, work, and travel.
Plaintiffs also contended that SORA’s retr oactive application to them—specifically, the retroactive application of the amendments that went into effect starting in 2006 or later—
amounts to an Ex Post Facto punishment prohibite d by the Constitution. See U.S. Const. art. I, § 10, cl. 1.Nos. 15-1536/2346/2486 Does, et al. v. Snyder, et al. Page 4

In a handful of opinions, including an opini on following from a Rule 52 bench trial, the district court concluded, among other things, that SORA was not an Ex Post Facto law and that most of its provisions did not violate the C onstitution’s guarantee of due process. It did conclude, however, that Plaint iffs were correct that some of SORA’s provisions were unconstitutionally vague, that those who are requi red to register under that law cannot be held strictly liable for violating its re quirements, and that its retroactiv e requirement that sex offenders register on-line aliases for life violated the First Amendment. Both sides filed timely appeals,
which we have consolidated.
We begin our analysis with the Ex Post Fact o issue. As is the case with many of the Constitution’s guarantees—“due process of law,” “the freedom of speech,” “the right of the people to keep and bear arms”—the Ex Post Facto clause leaves unanswered foundational questions about the guarantee’s sc ope and means of enforcement. The document itself provides simply that “No State shall . . . pass any . . . ex pos t facto Law.” U.S. Const. art. I § 10, cl. 1. As with the other guarantees, it is the courts thathave done most of th e work in expounding the legal meaning of this provision—in deed, the Ex Post Facto clause was one of the first, if not the first, such constitutional question to be exposited by the Supreme Court, when it issued its
1798 decision in Calder v. Bull , 3 U.S. 386 (1798). That case, co nsistent with what scholars have identified as the majority position at the time of the founding, held that the Constitution’s
ban on Ex Post Facto laws does not bar all retroactive lawmaking, but only retroactive punishment, a codification of what many in the f ounding generation believed to be a self-evident
truth: nulle poena sine lege , no punishment without a law. See Calder , 3 U.S. at 388 (Opinion of Chase, J.) (explaining the Court’s holding that the Ex Post Facto clause prohibits only retroactive punishment and opining that such punishment was so “contrary to the great first principles of the social compact [that it could not] be considered a rightful exercise of legislative authority” even if there were no provision in the Constitution prohibiting it); see also David F. Forte, Ex Post
Facto , in The Heritage Guide to the Constitution , 203, 203–04 (David F. Forte & Matthew Spalding, eds. 2d ed. 2014).
This understanding has kept courts from interf ering with state sovereignty in many cases, but it has also provided a power ful check on states when they have sought to punish sociallyNos. 15-1536/2346/2486 Does, et al. v. Snyder, et al. Page 5

disfavored persons without prior notice. As Chief Justice John Marshall explained in Fletcher v.
Peck : Whatever respect might have been felt for the state sovereignties, it is not to be disguised that the framers of the constitution viewed, with some apprehension, the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. 10 U.S. 87, 137–38 (1810). The guarantee is, as Ja mes Madison put it, a “constitutional bulwark in favour of personal security and private rights.” The Federalist No. 44 , at 232 (James Madison) (The Gideon ed., George W. Carey & James McClellan eds., Liberty Fund 2001). As these quotations suggest, moreover, the distin ction between civil regulation and criminal punishment has never been woodenly applied. “[I]t is th e effect, not the form , of the law that
determines whether it is ex post facto .” Weaver v. Graham , 450 U.S. 24, 31 (1981).
And while some have questioned the self-evidence of nulle poena sine lege , see, e.g. , Calder , 3 U.S. at 399 (Opinion of Iredell, J.) (“Th e ideas of natural justice are regulated by no fixed standard: the ablest and the purest men ha ve differed upon the subject.”), and others have
called into doubt th e correctness of Calder ’s civil/criminal distinction, see, e.g. , Eastern Enterprises v. Apfel , 524 U.S. 498, 539 (1998) (Thomas, J., c oncurring) (“I woul d be willing to
reconsider Calder and its progeny to determin e whether a retroactive civ il law that passes muster under our current Takings Clau se jurisprudence is nonethel ess unconstitutional under the Ex Post
Facto Clause.”), the test we must ap ply, as a lower court, is quite fixed: an ostensibly civil and regulatory law, such as SORA, does not violate th e Ex Post Facto clause unless the plaintiff can show “by the clearest proof” that“what has been denominated a civil remedy” is, in fact, “a criminal penalty,” Smith v. Doe , 538 U.S. 84, 92 (2003) (citation and internal quotation marks omitted).
The Supreme Court’s decision in Smith is particularly germane to this case. InSmith , the Court considered an Ex Post Facto challenge to Alaska’s sex-offender re gistry law. Alaska’s regime was more modest than SORA, but the tw o share some core provisions: sex offenders residing in Alaska had to submit to annual or quarterly registration (t hough not in person) andNos. 15-1536/2346/2486 Does, et al. v. Snyder, et al. Page 6

had to give the State updates for such things as moving, growing a beard, changing hair color, or getting a new car. Id. at 90–91; 101. Like Michigan under SORA, Alaska maintained a website that published the offenders’ names, addresses, photos, physical descrip tions, license numbers, places of employment, dates of birth, crimes of conviction, dates and places of conviction, and length of sentences, as well the offenders’ co mpliance with the registration requirements. Id. at 91.

The Court in Smith concluded that Alaska’s law was civil, not criminal, employing a twopart test: (1) Did the legislature intend to impos e punishment? And (2), if not, is the statutory scheme “‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it
‘civil.’” Id. at 92 (quoting Kansas v. Hendricks , 521 U.S. 346, 361 (1997)) (b rackets in original).
With respect to the first question, SORA, like th e Alaska statute, includes a statement of purpose that evinces no punitive intent:
The legislature declares that the sex offenders registration act was enacted pursuant to the legislature’s exercise of the police power of the state with the intent to better assist law enforcement officers and the people of this state in preventing and protecting against the comm ission of future criminal sexual acts by convicted sex offenders. The legislatur e has determined that a person who has been convicted of committing an offense covered by this act poses a potential serious menace and danger to the healt h, safety, morals, and welfare of the people, and particularly the children, of this state. The registration requirements of this act are intended to provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to m onitor those persons who pose such a potential danger. Mich. Comp. Laws § 28.721a. And while Plaintiffs do point to some featur es that might suggest a punitive aim— e.g. , SORA is triggered solely by crimin al offenses and the registration requirement is recorded on the judgment; registra tion is handled by criminal justice agencies like the police; SORA imposes criminal sanctions; and it is codified in Chapter 28 of the Michigan Code, a chapter that deals withpolice-related laws—these are similar enough to the arguments rejected in Smith that we see no warrant for concludi ng that SORA’s intent is punitive.
See Smith , 538 U.S.at 95.Nos. 15-1536/2346/2486 Does, et al. v. Snyder, et al. Page 7

We must therefore consider whether SORA’s actual effects are punitive. Out of the seven factors—non-dispositive “guideposts”— that typically inform this inquiry, Smith identified
five that are relevant in this kind of case:
(1) Does the law inflict what has been rega rded in our history and traditions as punishment? (2) Does it impose an affirmative disability or restraint? (3) Does it promote the traditional aims of punishment? (4) Does it have a rational connec tion to a non-punitive purpose? (5) Is it excessive with respect to this purpose?

Smith , 538 U.S. at 97 (citing Kennedy v. Mendoza-Martinez , 372 U.S. 144, 168–69 (1963)). We
consider each factor in turn.
History and Tradition . As amici law professors point out, though SORA has no direct ancestors in our history a nd traditions, its restrictions do meet the general, and widely accepted, definition of punishment offered by legal philosophe r H.L.A. Hart: (1) it involves pain or other consequences typically considered unpleasant; (2) it follows from an offense against legal rules; (3) it applies to the actual (or supposed) offender; (4) it is intentionall y administered by people other than the offender; and (5) it is imposed and administered by an authority constituted by a legal system against which the offense was committed. See H.L.A. Hart, Punishment and Responsibility 4–5 (1968).
More specifically, SORA resembles, in some respects at least, the ancient punishment of banishment. True, it does not pr ohibit the registrant from setting f oot in the school zones, and it certainly doesn’t make a registrant “dead in la w [and] entirely cut off from society,” which is
how Blackstone described the ba nished. 1 William Blackstone, Commentaries *132. But its geographical restrictions are nevertheless very burdensome, especially in densely populated areas. Consider, for example, this map of Grand Rapids, Michigan, prepared by one of Plaintiff’s expert witnesses:Nos. 15-1536/2346/2486 Does, et al. v. Snyder, et al. Page 8

Sex Offenders are forced to tailor much of th eir lives around these school zones, and, as the record demonstrates, they often have great di fficulty in finding a place where they may legally live or work. Some jobs that require travelin g from jobsite to jobsit e are rendered basically unavailable since work will surely take plac e within a school zone at some point.
SORA’s requirements also resemble traditional shaming punishments. Unlike the law in
Smith , which republished information that was alread y publically available, SORA ascribes and publishes tier classifications corr esponding to the state’s estima tion of present dangerousnessNos. 15-1536/2346/2486 Does, et al. v. Snyder, et al. Page 9

without providing for any indivi dualized assessment. These desi gnations are un appealable, and apply even to those whose offenses would not or dinarily be considered sex offenses. Doe # 1, for example, is on the registry because of a non-sexual kidnapping offense arising out of a 1990 robbery of a McDonald’s. In other cases, SORA discloses otherwise n on-public information. Doe # 2, for example, is on the registry becaus e, in 1996, when he was eighteen years old, he pled guilty under Michigan’s “Holmes Youthful Trainee Act,” Mich. Comp. Laws § 762.11, a record-sealing statute for young offenders, to “Criminal Sexual Conduct III” for having sex with a fourteen-year-old girl with w hom he had a romantic relationshi p. But for SORA’s retroactive application to him, his criminal record would not be available to the public. Thus, unlike the
statute in Smith , the ignominy under SORA flows not only fr om the past offense, but also from
the statute itself.
Finally, SORA also resembles the punishment of parole/probation. In Smith , which involved nothing more than reporting requirements, the Court took seriously the claim that the Alaska statute resembled parole/probation, acknowl edging that “[t]his argument has some force, but,” concluding that it was ultimately dissimilar because, unlike parolees, “offenders subject to the Alaska statute are free to move where they wi sh and to live and work as other citizens, with no supervision.” 538 U.S. at 101. Under SORA, by contrast, registrants ar e subject to numerous restrictions on where they can live and work and, much like parolees, they must report in person, rather than by phone or mail. Failure to comply can be punished by imprisonment, not unlike a revocation of parole. And while the level of individual supervis ion is less than is typical of parole or probation, the basic mechanism and effect s have a great deal in common. In fact, many of the plaintiffs have averred that SORA’s requi rements are more intrusive and more difficult to comply with than those they faced when on probation.

In sum, while SORA is not identical to a ny traditional punishments, it meets the general definition of punishment, has much in common with banishment and public shaming, employs geographical restrictions similar to those employed by punitive sun-down laws, and has a number of similarities to parole /probation. This factor thus weighs in Plaintiffs’ favor.
Affirmative Disability or Restraint . As should be evident, SORA requires much more from registrants than did the statute in Smith . Most significant is its regulation of whereNos. 15-1536/2346/2486 Does, et al. v. Snyder, et al. Page 10

registrants may live, work, and “l oiter.” As discussed above, th ese restrictions put significant restraints on how registrants ma y live their lives. Further, as also mentioned above, registrants must appear in person, both initially and for update s, and, if they are “T ier III” offenders, they
must do so for life. These are dire ct restraints on personal conduct.
Michigan points out, however, that these restraints are not physical in nature and
contends that the actual effect s are therefore “minor and indi rect” like those in the statute
considered in Smith , 538 U.S. at 100. But surely somethi ng is not “minor and indirect” just because no one is actually being lugged off in co ld irons bound. Indeed, those irons are always in the background since failure to comply with th ese restrictions carries with it the threat of serious punishment, including impris onment. These restraints are greater than those imposed by the Alaska statute by an order of magnitude. Cf. Smith , 538 U.S. at 101 (noting, for example, that “[t]he Alaska statute, on its face, does not require these updates to be made in person”).
Michigan has a stronger point in noting that SORA’s restricti ons are in some ways not as severe as complete occupation-disbarment, which has been held to be non-punitive. Id. at 100;
see also De Veau v. Braisted , 363 U.S. 144 (1960) (forbidding work as a union official); Hawker
v. New York , 170 U.S. 189 (1898) (revocation of a medical license). But no disbarment case we
are aware of has confronted a law with such sweeping conditions or approved of disbarment without some nexus between the regulatory purpose and the job at issue. SORA’s restrictions are again far more onerous than those considered in Smith . And this factor too therefore weighs
in Plaintiffs’ favor.
Traditional Aims of Punishment. SORA advances all the traditional aims of punishment: incapacitation, retribution, and specific and general deterrence. Its very goal is incapacitation insofar as it seeks to keep sex offenders away fr om opportunities to reoffend. It is retributive in
that it looks back at the offe nse (and nothing else) in imposi ng its restrictions, and it marks registrants as ones who cannot be fully admitted into the community. Further, as discussed below, it does so in ways that relate only tenuou sly to legitimate, non-punitive purposes. Finally, its professed purpose is to deter re cidivism (though, as discussed belo w, it does not in fact appear to do so), and it doubtless serves th e purpose of general deterrence. See J.J. Prescott & Jonah E.Nos. 15-1536/2346/2486 Does, et al. v. Snyder, et al. Page 11

Rockoff, Do Sex offender Registration and Notifi cation Laws Affect Criminal Behavior? , 54 J.L. & Econ. 161 (2011).
Of course, many of these goals can also rightly be descri bed as civil and regulatory. See
Smith , 538 U.S. at 102 (“Any number of government al programs might deter crime without imposing punishment. To hold that the mere presence of a deterrentpurpose renders such sanctions criminal would severely undermine the Government’s ability to engage in effective regulation.” (internal quotation marks and citation omitted)). And we accordingly give this factor little weight.
Rational Relation to a Non-Punitive Purpose. “The Act’s rational connection to a nonpunitive purpose is a ‘[m]ost significant’ factor inour determination that the statute’s effects are not punitive.” Id. (quoting United States v. Ursery , 518 U.S. 267, 290 (1996)) (brackets in original). As in Smith , the legislative reasoni ng behind SORA is readily discernible: recidivism rates of sex offenders, according to both the Michigan legislature and Smith , are “frightening and high”; informing the public of sex offenders’ addr esses, photos, tier rankings, etc. provides a mechanism to keep tabs on them with a view to preventing some of the most disturbing and destructive criminal activity; and school zone s keep sex offenders away from the most
vulnerable.
Intuitive as some may find this, the record before us provides scant support for the proposition that SORA in fact accomplishes its professed goals. The record below gives a thorough accounting of the sign ificant doubt cast by recent empirical studies on the pronouncement in Smith that “[t]he risk of recidivism pos ed by sex offenders is ‘frightening and high.’” 538 U.S. at 103 (quoting McKune v. Lile , 536 U.S. 24, 34 (2002)). One study suggests that sex offenders (a category that includes a great diversity of crim inals, not just pedophiles) are actually less likely to recidivate than other sorts of criminals. See Lawrence A. Greenfield, Recidivism of Sex Offenders Re leased from Prison in 1994 (2003). Even more troubling is evidence in the record supporting a finding that offense-based public registration has, at best, no impact on recidivism. [R. 90 at 3846–49]. In fact, one statisti cal analysis in the record
concluded that laws su ch as SORA actually increase the risk of recidivism, probably because they exacerbate risk factors for recidivism by making it hard for re gistrants to get and keep a job,Nos. 15-1536/2346/2486 Does, et al. v. Snyder, et al. Page 12

find housing, and reintegrate into their communities. See Prescott & Rockoff, supra at 161. Tellingly, nothing the parties have pointed to in the record suggests that the residential restrictions have any beneficial effect on recidivism rates. And while it is intuitive to think that
at least some sex offenders— e.g. , the stereotypical playgrou nd-watching pedophile—should be kept away from schools, the statute makes no provision for individualized assessments of proclivities or dangerousness, even t hough the danger to chil dren posed by some— e.g. , Doe # 1,
who never committed a sexual offense—is doubtless far less than that posed by a serial child
molester.

Excessiveness. Further, while the statute’s efficacy is at best unclear, its negative effects are plain on the law’s face. As explained abov e, SORA puts significant restrictions on where registrants can live, work, and “loiter,” but the pa rties point to no evidence in the record that the difficulties the statute imposes on registrants ar e counterbalanced by any positive effects. Indeed, Michigan has never analyzed recidivism rates despite having the data to do so. [R. 90 at 3768–69]. The requirement that registrants make frequent, in-person appearances before law enforcement, moreover, appears to have no relationship to public safety at all. The punitive
effects of these blanket restricti ons thus far exceed even a generous assessment of their salutary
effects.
So, is SORA’s actual effect punitive? Many st ates confronting similar laws have said “yes.” See, e.g. , Doe v. State , 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien , 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr ., 305 P.3d 1004 (Okla. 2013);
Commonwealth v. Baker , 295 S.W.3d 437 (Ky. 2009); Doe v. State , 189 P.3d 999, 1017 (Alaska 2008). And we agree. In reaching this conclusion, we are mindful that, as Smith makes clear, states are free to pass retroactive sex-offender registry laws and that those challenging an ostensibly non-punitive civil law mu st show by the “clearest proof” that the statute in fact inflicts punishment. But difficult is not the same as impossible. Nor should Smith be understood as writing a blank check to states to do wh atever they please in this arena.
A regulatory regime that severely restricts wh ere people can live, work, and “loiter,” that categorizes them into tiers ostensibly corr esponding to present dangerousness without any individualized assessment thereof, and that re quires time-consuming and cumbersome in-personNos. 15-1536/2346/2486 Does, et al. v. Snyder, et al. Page 13

reporting, all supported by—at best—scant evidence th at such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether di fferent from and more troubling than Alaska’s first-gene ration registry law. SORA bra nds registrants as moral lepers solely on the basis of a pr ior conviction. It consigns them to years, if not a lifetime, of existence on the margins, not only of societ y, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live. It directly regulates where registrants may go in th eir daily lives and comp els them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.
We conclude that Michigan’s SORA impos es punishment. And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduc t that deserves severe legal penalties, punishment may never be retroactively imposed or increa sed. Indeed, the fact that sex offenders are so widely feared and disdained by the general public impli cates the core countermajoritarian principle embodied in the Ex Post Facto clause. As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice. Such lawmaking has “been, in all ages, [a] favorite a nd most formidable instrument[] of tyranny.”
The Federalist No. 84 , supra at 444 (Alexander Hamilton). It is, as Justice Chase argued, incompatible with both the words of the Constitu tion and the underlying firs t principles of “our free republican governments.” Calder , 3 U.S. at 388–89; accord The Federalist No. 44 , supra at 232 (James Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation.”). The retr oactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.
As we have explained, this case involves far more than an Ex Post Facto challenge. And as the district court’s detailed opinions make ev ident, Plaintiffs’ argumen ts on these other issues
are far from frivolous an d involve matters of great public im portance. These questions, however, will have to wait for another day because none of the contested provisions may now be applied to the plaintiffs in this lawsuit, and anything we would say on those other ma tters would be dicta.Nos. 15-1536/2346/2486 Does, et al. v. Snyder, et al. Page 14

We therefore reverse the district court’s decision that SORA is not an Ex Post Facto law and remand for entry of judgment c onsistent with this opinion.