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Indiana ban on sex offenders using social networking and social media sites violates First Amendment

Doe v. Prosecutor, Marion County, Indiana, Case No. 12-2512, 1/23/13; Seventh Circuit Court of Appeals decision

A recent Indiana statute prohibits most registered sex offenders from using social networking websites, instant messaging services, and chat programs. John Doe, on behalf of a class of similarly situated sex offenders, challenges this law on First Amendment grounds. We reverse the district court and hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors. (Slip op. at 1-2).

The law prohibits “knowingly or intentionally us[ing]: a social networking web site” or “an instant messaging or chat room program” that “the offender knows allows a person  who is less than eighteen (18) years of age to access or use the web site or program.” Thus, an offender’s lack of knowledge is a defense. So is ceasing use upon discovering minors can use the site or program. The ban applies broadly to individuals required to register as sex offenders, and does not differentiate based on the  age of victim, the manner in which the predicate crime was committed, or the time since the predicate offense. The first violation is a misdemeanor; subsequent violations are felonies.

Wisconsin does not have a similar ban. We do prohibit facilitating the commission of a child sex offense using a computer (Wis. Stat. § 948.075), and sex offenders who have to register must provide DOC with information about their computer accounts, online identities, and password information (Wis. Stat. § 301.45(2)(a)6m). These narrower approaches to dealing with sex offenders’ use of computers are cited by the court (slip op. at 10-11) as examples of appropriate “narrowly tailored” alternatives, and are not invalidated by this ruling. The court also explicitly says (slip op. at 19) that its opinion should not be read to affect the validity of the common practice of sentencing judges to place restrictions on computer use as a condition of probation or extended supervision. As the court notes, “terms of supervised release or parole may offer viable constitutional alternatives to the blanket ban—imposed outside the penal system—in this case” (slip op. at 20).

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