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Monday, January 28, 2013

Indiana Law Banning Sex Offenders from Social Media Sites is Unconstitutional

Indiana recently passed a law prohibiting registered sex offenders from using social media.  Specifically, the law prohibited all registered sex offenders from “knowingly or intentionally using a social networking web site, instant messaging, or chat room program that the offender knows allows a person who is less than eighteen years of age to access or use the web site or program.”  Indiana Code §35-42-4-12(e).  A violation was a Class A misdemeanor, but subsequent violations would be a Class D felony.    
A group of registered sex offenders challenged the law, arguing that it was unconstitutional under the First Amendment.  The group argued that there is nothing dangerous about a sex offenders’ use of social media so long as it is not used to communicate improperly with minors.  Further, the group contended that illicit communication makes up a miniscule amount of social media activity.  The district court upheld the law, finding it served a significant state interest and left open alternative channels of communication.  The court reasoned that the statute was narrowly tailored as “the vast majority of the internet is still at Mr. Doe’s fingertips.”
The 7th Circuit Court of Appeals reversed, holding the statute was unconstitutional on First Amendment grounds.  Although the court found the statute to be content neutral, because it unnecessarily prohibited substantial amounts of protected speech, the law was overly broad and not sufficiently tailored to meet the state’s interest in protecting minors from harmful online communications.  Despite it’s holding, the Seventh Circuit made it clear that the Indiana legislature was free to draft a new statute to address similar concerns, without offending the First Amendment.  Doe v. Prosecutor, Marion County, Indiana, No. 12-2512 (January 23, 2013).
Post Authored by Erin Baker, Ancel Glink


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