Social Media Ban Is Too Harsh on Sex Offenders, 7th Circuit Says

     (CN) - The 7th Circuit on Wednesday struck down an Indiana law that prohibits most registered sex offenders from using social networking websites, instant messaging or chat rooms.
     "Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state's interest," Judge Joel Flaum wrote for a three-member panel "It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors."
     Passed in 2008, Indiana Code Section 35-42-4-12 bars registered sex offenders from using websites, chat rooms and instant messaging services if those entities are known to be accessed by children under the age of 18.
     "The law does not differentiate based on the age of victim, the manner in which the crime was committed, or the time since the predicate offense," Flaum wrote.
     There is an exemption, however, for "persons convicted of so-called Romeo and Juliet relationships where the victim and perpetrator are close in age and had a consensual relationship."
     The law also includes a defense for sex offenders who unwittingly used a prohibited website but immediately stopped when they find out that the site allowed minors.
     John Doe had been convicted in Marion County of child exploitation and registered as a sex offender upon his release from prison in 2003. He sued anonymously over the 2008 law, naming the Marion prosecutor as a defendant.
     After a bench trial that involved testimony from Doe and social media experts, U.S. District Judge Tanya Pratt of Indianapolis held that the law was narrowly tailored to serve legitimate state interests.
     She said Doe had failed to present "workable measures that achieve the same goal (deterrence and prevention of online sexual exploitation of minors) while not violating his First Amendment rights." (Parentheses in original.)
     Doe could still communicate on the Internet via adult-only websites, email and message boards, according to the ruling. Pratt also pointed out that Doe would not need the barred Internet services to call into radio shows, write letters to newspapers or engage in other forms of social networking.
     These alternatives failed to sway the Chicago-based federal appeals court Wednesday.
     "The statute clearly implicates Doe's First Amendment rights as incorporated through the Fourteenth Amendment," Flaum wrote. "It not only precludes expression through the medium of social media, it also limits his 'right to receive information and ideas.'"
     Though the law is content neutral, the panel said Indiana had burdened substantially more speech than necessary to serve the intended interest.
     Indiana "agrees there is nothing dangerous about Doe's use of social media as long as he does not improperly communicate with minors," Flaum wrote. "Further, there is no disagreement that illicit communication comprises a minuscule subset of the universe of social network activity. As such, the Indiana law targets substantially more activity than the evil it seeks to redress."
     Supreme Court precedent on this issue stems from laws struck down in 1939 with Schneider v. Town of Irvington and in 1943 with Martin v. City of Saunders.
     "Like the states in Schneider and Martin, Indiana has other methods to combat unwanted and inappropriate communication between minors and sex offenders," Flaum wrote. "For instance, it is a felony in Indiana for persons over twenty-one to 'solicit' children under sixteen 'to engage in: (1) sexual intercourse; (2) deviate sexual conduct; or (3) any fondling intended to arouse or satisfy the sexual desires of either the child or the older person.'"
     The court declined to wade too deep into alternative laws, but said Indiana would have little difficulty in targeting illicit communication more precisely.
     It slammed Indiana for distinguishing the new law as preventative, as compared with the punitive nature of existing solicitation and communication laws.
     "The immediate problem with this suggestion is that all criminal laws generally 'punish' those who have 'already committed' a crime," Flaum wrote. "The punishment is what 'prevent[s] and deter[s]' undesirable behavior. Thus, characterizing the new statute as preventative and the existing statutes as reactive is questionable."
     If an offender is willing to break the existing anti-solicitation law, "why would the social networking law provide any more deterrence?" the 20-page opinion asks.
     "By 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," Flaum wrote.
     The decision concludes by noting the need for narrow tailoring when laws implicate the First Amendment.
     "Subsequent Indiana statutes may well meet this requirement, but the blanket ban on social media in this case regrettably does not," Flaum wrote.