Is it Constitutional to Ban Sex Offenders From Social Networks?

July 25, 2012

Last month, a Federal District Court Judge in Indianapolis upheld an Indiana law prohibiting sex offenders from accessing social networking websites after the American Civil Liberties Union (ACLU) challenged the law as part of a class action on behalf of sex offenders. The judge reasoned that the law did not violate the constitutional rights of a defendant.

The constitutionality of banning sex offenders from Internet websites has been brought to light recently and continues to be a hot topic.

The Case

In the most recent case of Doe v. Prosecutor, Marion County, the court considered the challenge to Indiana's statute that restricts released sex offenders from using social networking sites like, Facebook, Twitter and any site that relies on social network sites that allow minors, including some newspaper sites.

Doe argued that the statute was not "narrowly tailored" to the states interest of protecting minors from being targeted by sex offenders. (When a statute imposes a burden on a First Amendment right, such as the freedom of association, it must be "narrowly tailored to serve a significant governmental interest" or else it will be deemed unconstitutional.)

The Law

The court found there was a significant governmental interest, protecting minors from sexual exploitation by sex offenders. The law was also conceded to be content neutral, in that it did not restrict the type of speech of a sex offender could use on the social network sites, as it simply prohibited any speech.

The court notes that a content neutral law will be upheld if it, "(1) is "narrowly tailored to serve a significant governmental interest"; and (2) "leave[s] open ample alternative channels for communication of the information." If the statute satisfies these criteria, then it is deemed to be a "reasonable time, place and manner regulation[.]"

While the court found that this law would prohibit registered sex offenders from accessing websites that permit minors to use them, including Facebook, Twitter, Google Plus and others, the court did not believe this to be an impermissible restriction.

Doe had argued that the law would prohibit him, and others from, "making comments about current events on the Indianapolis Star web site; participating in political discussions in certain chat rooms; advertising for businesses using certain social networking sites; or sharing photos and having group discussions with family members through Facebook."

Nonetheless, the court reasoned that, "Mr. Doe (and those similarly situated) can still communicate through email, message boards, and social networking sites that require the user to be 18 years old." This, the court thinks, provides "ample alternative channels for communication of the information."

Other Cases Across the County

A decision earlier this year from Louisiana, however, struck down a state statute because it was, in fact, unconstitutional. The court found the law overbroad because it banned sex offenders who had completed the terms of their sentence from accessing virtually all Internet sites, including court websites.

In that case, terms within the statute were defined imprecisely or not at all. Some argued that the Act was "unintelligible to the public, unenforceable by police and prosecutors and uninterpretable by the judiciary."

In 2009, a federal judge in Nebraska found parts of Nebraska's law were overbroad and unconstitutional.

Future Litigation

Given the newness of social networking sites, (Facebook began in 2004) the full contour of their effect on society is still a work in process.

The Indiana court notes that Facebook now has 901 million users. Courts may find it difficult to prove, as Facebook and its progeny expand and become more influential, that banning all registered sex offenders is sufficiently narrowly tailored. It remains to be seen, however, what will become of this case as either side may appeal the decision.

A further challenge is also pending in Nebraska to that state's law.

As more states actively legislate in this area, and the societal significance of social network websites increases, it is likely the Supreme Court will eventually grant certiorari and provide the last word.

Article provided by Cleveland Law Firm
Visit us at www.utahcriminallawyer.com