Interesting case on sex offenders and social media. . . .
Doe v. Prosecutor,
No. 12—2512 (7th Cir. Jan. 23, 2013) (for publication).
Indiana statute prohibited sex
offenders from using social media sites, instant messaging, and on-line
chats. John Doe challenged
this statute on First Amendment grounds.
The Seventh Circuit found the law unconstitutional. While it was content
neutral, it was not narrowly tailored to serve
the state’s interests. It broadly
prohibited substantial protected speech instead of targeting improper
communications to minors.
Indiana Code section 35-42-4-12 prohibited certain sex
offenders from knowingly using social-networking sites or instant-messaging or chat-room
programs that the offender knows allow minors access or use. The statute did
not differentiate sex offenders based on the age of the victim, the manner in which
the crime was committed, or the time since the prior offense. There was an exemption for people convicted
of “Romeo and Juliet relationships,” those in which victim and perpetrator were
close in age and had a consensual
relationship. The statute did not cover
e-mail.
After a bench trial, the district court
upheld the law, finding it narrowly tailored to serve a significant state
interest. There were other means of
communication available.
The Seventh Circuit found that the
statute clearly implicated First Amendment rights: it precluded expression
through social media, and it limited the right to receive information and
ideas. The law was content neutral---its
restrictions did not turn on the content of the expression. The state could “impose reasonable ‘time,
place, or manner restrictions.’”
To impose such restrictions, the law
would have to meet “a variant of intermediate
scrutiny.” It had to be narrowly tailored to serve a significant government interest, and it had
to leave open “ample alternative channels” allowing communication of the information.
The court found that the statute was not narrowly tailored, so it
did not reach the alternative-channel inquiry.
The statute targeted substantially more
activity than the evil it sought to redress. The district court had acknowledged this
breadth, finding that the law captured conduct that had
nothing to do with minors. Indiana has other means
to combat inappropriate communication between
minors and sex offenders.
The court of appeals did not want to
impose “too high a standard” on the state. But in the end, “the
Constitution tolerates some over-inclusiveness if it furthers the state's
ability to administer the regulation and combat an evil,” but not as much as
was presented here.
There were other laws to address these
concerns. Indiana had statutes prohibiting solicitation. The court of appeals observed that “[b]y
breaking two laws, the sex offender will face increased sentences; however, the
state can avoid First Amendment pitfalls by just increasing the sentences for
solicitation—indeed, those laws already have enhanced penalties if the
defendant uses a computer network.”
For our purposes, it is important to note
that the court said, “this opinion should not be read
to affect district courts’ latitude in fashioning terms of supervised release.” It noted that “in
assessing the need for incapacitation, see § 3553(a)(2)(C), a court
could conceivably limit a defendant’s Internet access if full access posed too
high a risk of recidivism.” A total ban
on the Internet could, however, be too broad.
