Law to Keep Sex Offenders from Social Media Ruled Unconstitutional

Comstock/Thinkstock(INDIANAPOLIS) — A federal appeals court on Wednesday said an Indiana law aimed at keeping most registered sex offenders from using social networking websites, instant messaging services and chat programs is unconstitutional.

The U.S. Court of Appeals for the 7th Circuit said that the law was too broad and failed to specifically target “the evil of improper communications to minors.”

The law, called “35-42-4-12,″ bans certain sex offenders from “knowingly or intentionally” using social media sites that “the offender knows allows a person who is less than 18 years of age to access.”

The law was challenged in January 2012 by a man who asked to be identified as “John Doe” in court. He argued the law violated his First Amendment rights. Doe was arrested in 2000 and convicted of two counts of child exploitation. After he was released in 2003, he was required to register as a sex offender and prohibited from using websites and programs covered under the law.

Doe’s lawyers from the ACLU of Indiana argued in court papers that he wanted to access social media, particularly Facebook, to monitor his son’s usage, as well as engage in political discussions, comment on news stories and share photos and videos with family.

Lawyers for Marion County, Ind., countered that the law does not ban sex offenders from using the Internet.

“It only precludes sexually violent predators and those convicted of sex offenses against children from using social media that permit usage by persons under the age of 18,” the lawyers argued.

In a statement released after Wednesday’s ruling, Indiana Attorney General Greg Zoeller said, “The Indiana 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.”

The 3-0 opinion written by Judge Joel Martin Flaum and joined by Judges John Daniel Tinder and John T. Thorp Jr., said that while Indiana is justified in shielding its children from improper sexual communication, the law at hand “targets substantially more activity than the evil it seeks to redress.”

The court noted that Indiana has “existing tools” to combat sexual predators but cautioned that laws that may compromise the First Amendment require narrow tailoring.

“Subsequent Indiana statutes may well meet this requirement,” the court said, “but the blanket ban on social media in this case regrettably does not.”

“There is no doubt that the state has a paramount interest in protecting children,” Ken Falk, the legal director of the ACLU of Indiana, said in a statement released after the decision. “But the court properly recognized that the state cannot do this with a law so broad that it prevents someone convicted of an offense years, or even decades ago, from engaging in a host of innocent communications via social media. Indiana already has a law that prohibits inappropriate communication with children, and the law in this case served no purpose but to prohibit communication protected by the First Amendment.”

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