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February 21, 2012

Federal judge finds unconstitutional broad state law limiting sex offender internet activity

Thanks to this new post by Eugene Volokh at his conspiracy, I just learning of a notable new ruling concerning an issue that seems destined to be the subject of much constitutional litigation in lots of different flavors in the years to come.  The post is titled "Federal District Court Strikes Down Ban on Much Internet Activity by Registered Sex Offenders," and here are snippets and links:

A Louisiana statute bans much Internet activity by registered sex offenders who had been convicted of child pornography or other sex crimes involving children (or of video voyeurism); the law, like most other laws dealing with sex offenders, includes within its coverage sex offenders who are no longer in prison or on probation. The law bans “using or accessing of social networking websites, chat rooms, and peer-to-peer networks” by such offenders, unless “the offender has permission to use or access social networking websites, chat rooms, or peer-to-peer networks from his probation or parole officer or the court of original jurisdiction.”  And the law defines the prohibited sites very broadly...

This blog would therefore qualify as a “chat room,” as would any newspaper site that allows reader comments.  Any service that lets people set up their own Web pages would qualify as a “social networking website.”

Last Thursday, a federal district court struck down the law, holding that it was unconstitutionally overbroad.  The court therefore did not have to decide whether a law that was more focused on registered sex offenders’ communications to minors, or that were especially likely to be seen by minors rather than by adults, would be constitutional.

The court also rejected, for two reasons, the argument that the exception for any offender who got “permission … from his probation or parole officer or the court of original jurisdiction” narrowed the law sufficiently: First, the law didn’t impose any standards that the permission-granting authority would use. (Such standardless discretion has often been held to be unconstitutional where First Amendment rights are involved.) Second, it isn’t clear how a defendant who isn’t on probation or parole could get permission from the court of original jurisdiction, since some such courts might not (under the law of the jurisdiction to which the court belongs) have the authority to do or say anything more with regard to defendants whose sentences have been completed.

The court’s analysis seems quite right to me.  I would think that even narrower restrictions would be unconstitutional as to people who have finished serving their sentences (though the matter isn’t an open and shut, and raises interesting — though imperfect — analogies to the restrictions on the Second Amendment rights of felons and some misdemeanants who have finished serving their sentences).  But certainly restrictions that are this broad are unconstitutional.

February 21, 2012 at 06:05 PM | Permalink

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Comments

"But certainly restrictions that are this broad are unconstitutional."

...and that's just common sense!!!!!!

Posted by: Book38 | Feb 21, 2012 7:11:40 PM

The law, as written, is absolutely unconstitutional. It is a HORRIBLY written law, which shows the absolute negligence of understanding how the Internet works. It does, though, provide a convenient platform for Bobby Jindal to use the "M-word" once again to describing those who are on the registry.

What was really amusing was to see the state attorney trying to defend this capricious law. The attorney kept on trying to imply that there was no way that the state would enforce the "minor" parts of the law, but could not testify to any demonstrable threshold set by the state.

I seriously doubt the state will appeal the law as written to the 5th Circuit. Most probably, they will rewrite the law so it approaches the same level of objective thresholds of culpability as North Carolina or New York. Even though those states' laws are constitutionally vapid, Louisiana's law, as written, basically says that any site where one can log in and send messages or post on a bulletin board is illegal.

Posted by: Eric Knight | Feb 21, 2012 9:15:16 PM

Given how ubiquitous social media has become, it seems like a law like this would be constitutionally doomed from the get-go. It's almost akin to saying that someone can't use the internet whatsoever, which I believe federal courts have struck down even for people on supervised release. Depending on how broadly one defines social media or using social media, it could potentially be basically impossible to use any website whatsoever. Hell, in the opinion the judge indicated that it would cover the court's own website.

Posted by: Guy | Feb 21, 2012 10:38:07 PM

i think the individuals should have taken the computers they were no longer allowed to use and went to the state house and found the crooked nazi wannabees behind this ILLEGAL law and then used said computers to turn the nazis into a set of punching bags using said computers to beat them to a bloody pulp!

Posted by: rodsmith | Feb 22, 2012 2:36:49 PM

Oh ye so quick to use the 'Nazi' sneer & exaggerations:

1) I do not share your outrage on behalf of convicted sex offenders. Is it based on the 'slippery slope'-Niemoller 'first they came for the Communists' apprehension?

2) Having worked with adjudicated &/or incarcerated folk for over a dozen years, I could describe ad nauseam the ends to which such will seek to evade the firewalls and measures of cyber-security.

3) The state attorney will rewrite the law with lesser limits, but the Nazis will subsist still—exclusively in your minds.

Posted by: Adamakis | Feb 23, 2012 9:36:53 AM

Louisiana's mistake obviously was in writing their law themselves rather than contacting Erika's Icky Perv Solutions which could have provided several exciting less restrictive alternatives.

First, you need to narrowly focus who the law applies to - Louisiana was on the right track except they were a bit too ambitious. Child pron possessors, people who attempt to contact children through the internet, and bathroom/upskirt video perverts are clearly people whose access to the internet should be restricted. People who commit contact offenses against children with no computer involvement are likely not fitting targets for a constitutional law. Obviously the law should be narrowly tailored to who it targets - and those are people whose offenses are connected to computing and related technology.

Then you need to look at what is restricted - peer to peer sites yes, that is pretty obvious because that is how icky pervs have been trading child porn. There is also limited legitimate purposes of peer to peer networks - I know there are supposedly some, but its pretty much all icky pervs trading child pron and college students trading illegal copies of movies and music. But in any case, there are available substitutes for any legitimate purpose for a peer to peer network. So I think that ban providing there is a nexus between the use of technology/computers in the original crime to sustain such a ban.

Social networks - a total ban may well be overkill - obviously a ban against contacting minors is clearly Constitutional. A better/less restrictive idea would be to require registered sex offenders to include a link to their sex offender registry profile on their pages - thus, anyone who receives contact from them can know that they are a registered sex offender. However, the sex offenders would still be able to use those networks to interact with adults. Interestingly enough the court appears to think that a narrowly tailored ban aimed at Facebook, Myspace, etc. would be okay - but it would also appear to limit usage of the top search engines/free email providers Google and Yahoo. Therefore the proper course of action appears to be restrict how the social networks are used rather than a total ban.

Louisians is obviously on the right track here - they just need to narrow the scope of the ban and soon they can create an entirely new category of pretext to send icky pervs back to prison where they belong.

Erika :)

Posted by: virginia | Feb 23, 2012 12:27:39 PM

well adamakis i call em like i see em! IF they have no problem rewriting the laws illegally to suit thier purpose like the nazis did in the 1930's Well then they ARE nazi's and should be treated like them!

They want to act like a nazi then they get the same PUNISHMENT they got.... execution by hanging or in minor cases decades of hard labor in prison!

Posted by: rodsmith | Feb 23, 2012 12:33:20 PM

Well:

Erika's back to her old Jim Crow ideas but has no idea who constitutes icky pervs. I have to remember that she has been informed, chided and imbued with the sex-offender concept her entire limited life. I can remember when life was better and justice meant something before the existence of a sex-offender registry, which is not narrowly tailored.

Posted by: albeed | Feb 23, 2012 10:58:47 PM

albeed,

icky pervs equal people who commit sex offenses against prepubscent children and people who possess child pornography which is to say pedophiles. In this case, the law is aimed at icky pervs and video voyuers - who are primarily extremely creepy perverts who take upskirt panty photos, hide in bushes outside of women's apartments, or have cameras in women's bathrooms. as a man, you probably do not really consider that group to be much of an issue since they almost exclusively target women and teenaged girls - and obviously outside of bagpipe player conventions the upskirt panty pervs are exclusively a concern of women.

so in this case we are talking about people who victimize others using technology - if you read the opinion even the sex offenders who challenged the law admit that some computer restrictions against sex offenders would be constitutional.

erika :)

Posted by: virginia | Feb 24, 2012 9:28:51 AM

Erika:

Just wear pants then!

Posted by: albeed | Feb 24, 2012 10:42:49 PM

albeed,

so rather than punishing the upskirt panty pervs you would make me give up my right to bare legs? ;)

Erika :)

Posted by: virginia | Feb 25, 2012 7:58:19 AM

albeed,

do you realize even if i wear pants, a perv could still be staring at my booty and take pictures of it and post it online. it is less of a personal intrusion than an upskirt photo, but about the only way to assure that pervs do not stare at you or take unwanted pictures of you is to wear a burkha. so essentially you are taking the taliban position that it is the woman's fault that men can't be trusted - so women must be controlled and severely punished because men are such pigs.

women in this country worked too hard to gain the freedom to wear what we want for pervs to take it from us - hence, the proper solution is to punish the pervs who are violating women's rights and not blame the victims of the pervs.

erika :)

Posted by: virginia | Feb 26, 2012 7:45:37 AM

Erika:

OK, just wear thongs then. I will promise to be discreet in my viewing. I don't want to be a PIG as you claim all men are.

Posted by: albeed | Feb 26, 2012 3:05:37 PM

albeed: "Just wear pants then!"

That's funny.

Posted by: Huh? | Feb 26, 2012 3:32:38 PM

What, no icky, female pervs Virginia, or do you just have man issues?

Posted by: Huh? | Feb 26, 2012 3:52:07 PM

huh?, yes there are some female icky pervs. it is extremely rare but there are some women that are in fact disgusting pedophiles. they should be treated exactly like male icky pervs - long prison sentences followed by severe restrictions after release.

Erika :)

Posted by: virginia | Feb 27, 2012 7:05:14 AM

albeed, its much too cold today to just wear a thong plus that would not comply with my office dress code :P

and i never claimed that all men are pigs who can't be trusted around women - just the heterosexual ones - oopsie, I meant the men who are pigs who sexually assault and sexually harass women would do so no matter what a woman was wearing :)

and discrete glances from nonperv men are acceptable ;)

erika :)

Posted by: virginia | Feb 27, 2012 7:23:37 AM

Intelligent people do not use the phrase "sex offender".

Stop nanny big government. They are doing nothing that has an overall positive effect.

Posted by: FRegistryTerrorists | Feb 28, 2012 7:27:16 AM

rodsmith:

People do overuse "Nazi". How about calling these people what they are, which is terrorists? That are simply people who cannot leave other people alone. They can't imagine not trying to control other people.

Posted by: FRegistryTerrorists | Feb 28, 2012 7:33:34 AM

sorry but no. the defination of a "terrorist" is someone working alone or in small groups attacking private citizens or locations because they cann't hope to attack a legal MILITARY target and to instill TERROR!

these PEOPLE on the other hand are a well coordianted group of hate filled awholes just like the nazis' they are also using just about every technique short of the concentration camps that the nazi's used to well.

So they act like a group of NAZAI'S so that is what i call them!

Posted by: rodsmith | Feb 28, 2012 10:16:06 AM

rodsmith:

Well ... of course, that is not the dictionary definition of terrorist. Zealots who support the Registries are terrorists.

But they are many other things as well so go ahead and call them as you see them. Some of them would be on the level of Nazis if they could just get enough people to agree that it would be okay. They are the same type of people who were Nazis. They are the same type of people who supported slavery. It seems there is always some tyrannical group of people attacking a hated group of the moment. Some people have to have that or their lives are meaningless.

Posted by: FRegistryTerrorists | Feb 29, 2012 12:39:56 PM

oh i'll give you that on FR

we have terrorist's out there involved in this mess

we also have zealots!

but our BIGGEST problem are the NAZI wannabee's

who are part of the local, state, and federal govt as well the those in the MEDIA who push the continual LIES and ILLEGAL laws DESIGNED to erode our constutional protections using the EXCUSE of sex offenders TO GET THE LAWS in place before SUDDENLY just like NAZI GERMANY they apply to EVERYONE!

Posted by: rodsmith | Mar 2, 2012 1:49:57 AM

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