Ban on social media for sex offenders unconstitutional, court rules
By Sheri Qualters The National Law Journal January
ACLU of Indiana legal director Kenneth Falk
A federal appeals court has struck down an Indiana law that imposes broad
social media restrictions on most registered sex offenders, finding it
On January 23, the U.S. Court of Appeals for the Seventh Circuit held that
the law—which bars most registered sex offenders from using social
networking websites, instant messaging services and chat programs—broadly bans
protected speech rather than curtailing speech targeted to minors.
A 'John Doe' filed a class action in January 2012 on behalf of similarly
situated registered sex offenders in the state, claiming that the law
violated their First Amendment rights.
In June 2012, Judge Tanya Walton Pratt of the Southern District of Indiana
found the law to be narrowly crafted to serve a significant state interest
and that class members have ample alternatives, including social
networking sites without minors, e-mail and message boards.
The Seventh Circuit reversed Pratt's decision and remanded the case for
her to enter judgment for Doe and issue a permanent injunction against
enforcement of the law.
Judge Joel Flaum wrote the opinion in _Doe v. Marion County Prosecutor_
, joined by Judge John Daniel
Tinder and Judge John Tharp Jr. of the Northern District of Illinois, who
sat on the case by designation.
"Though content neutral, we conclude that the Indiana law is not narrowly
tailored to serve the state's interest, " Flaum wrote. "It broadly
prohibits substantial protected speech rather than specifically targeting the evil
of improper communications to minors."
Flaum noted that "the Supreme Court has invalidated bans on expressive
activity that are not the substantive evil if the state had alternative means
of combating the evil."
He also observed that Indiana has other options for curbing inappropriate
communication between minors and sex offenders.
He stressed that laws affecting the First Amendment require narrow
tailoring: "Subsequent Indiana statutes may well meet this requirement, but the
blanket ban on social media in this case regrettably does not."
Kenneth Falk, legal director of the American Civil Liberties Union of
Indiana, who argued for Doe, said, "We felt this law was fatally overbroad and
not narrowly tailored and that's what the Seventh Circuit found.…Indiana
already has on the books laws that prohibit [sex offenders from]
inappropriate communications with children. This law targeted innocent conduct that
justifiably was not criminalized by the other laws."
In an e-mailed statement sent through a spokesperson, Indiana Attorney
General Greg Zoeller said the state's legislature "made a policy decision in
2008 that the state's reasonable interests in protecting children from
predators outweighed the interest of allowing convicted sex offenders to troll
social media for information. We have worked with county sheriffs and
prosecutors in our defense of the legal challenges to these protections of our
children, and we will need to review this 7th Circuit ruling to determine the
State's next steps."
Frances Barrow, an attorney at the Indiana Attorney General's office
argued for the state.
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