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June 25, 2012

Federal judge upholds Indiana's ban on sex offender use of Facebook and other social media sites

As reported in this AP article, late last week US District Judge Tanya Walton Pratt rejected a challenge to an Indiana law banning registered sex offenders from accessing Facebook and other social networking sites used by children. Here are the basics of the ruling and its context:

"Social networking, chat rooms, and instant messaging programs have effectively created a 'virtual playground' for sexual predators to lurk," Pratt wrote in the ruling, citing a 2006 report by the National Center for Missing and Exploited Children that found that one in seven youths had received online sexual solicitations and one in three had been exposed to unwanted sexual material online.

The American Civil Liberties Union of Indiana filed the class-action suit on behalf of a man who served three years for child exploitation, along with other sex offenders who are restricted by the ban even though they are no longer on probation....  "We will be appealing," ACLU legal director Ken Falk said in an email Sunday to The Associated Press. Appeals from federal courts in Indiana go to the 7th U.S. Circuit Court of Appeals in Chicago.

Courts have long allowed states to place restrictions on convicted sex offenders who have completed their sentences, controlling where many live and work and requiring them to register with police.  But the ACLU claimed that that Indiana's social networking ban was far broader, restricting a wide swath of constitutionally protected activities....

Though the law doesn't list which websites are banned, court filings have indicated the law covers Facebook, MySpace, Twitter, Google Plus, chat rooms and instant messaging services.  Earlier filings indicated LinkedIn was also covered by the ban, but Pratt's ruling said it wasn't because children under 18 can't sign up for it.

"It is a very well-reasoned opinion and the Indiana statute has certainly attempted to be specific," said Ruthann Robson, a professor of constitutional law at the City University of New York.  But she faulted the judge and the law for treating all sex offenders as if they were likely to commit another offense.  "A better statute might provide for some sort of individualized determination rather than a blanket prohibition," she said.

Social networking bans have been struck down in two other states. In February, U.S. District Judge Brian Jackson found that Louisiana's prohibition was too broad and "unreasonably restricts many ordinary activities that have become important to everyday life." Pratt said Indiana's ban wasn't as broad the overturned Louisiana ban.

Louisiana lawmakers passed a new law last month that more narrowly defines which sites are prohibited.  News and government sites, email services and online shopping are excluded from the new rules, as are photo-sharing and instant messaging systems.  The measure takes effect Aug. 1.

In Nebraska, a federal judge in 2009 blocked part of a law that included a social networking ban. A second legal challenge by an Omaha-area sex offender is set for trial in July.

Judge Pratt's full opinion in Doe v. Prosecutor, Marion County, Indiana, No. 1:12-cv-00062-TWP-MJD (S.D. Ind. June 22, 2012), is available at this link.  Here is how it starts:

In an effort to prevent the sexual exploitation of Hoosier children and protect the public at large, the State of Indiana prohibits certain registered sex offenders from using social networking sites, instant messaging programs, and chat room programs that allow access by persons under the age of 18.  See Indiana Code § 35-42-4-12(e).  The statute, enacted in 2008, makes the knowing or intentional use of these sites a Class A misdemeanor.  Id. Plaintiff John Doe (“Mr. Doe”), on his own behalf and on behalf of those similarly situated, contends that this statute runs afoul of the targeted sex offenders’ First Amendment rights.  Initially, Mr. Doe filed a motion for a preliminary injunction asking the Court to temporarily enjoin enforcement of the statute by Defendant, Prosecutor of Marion County, Indiana (“State”). (Dkt. #34.)  Since then, the parties have agreed that it would be appropriate for the Court to merge the preliminary injunction motion with a bench trial (Dkt. #40); see also Fed. R. Civ. P. 65(a)(2).  Accordingly, Mr. Doe now asks the Court to issue a declaratory judgment declaring Indiana Code § 35-42-4-12 unconstitutional on its face and to permanently enjoin the State’s enforcement of the statute.  The Court presided over oral arguments on May 31, 2012, and the Court thanks counsel for their excellent and thoughtful advocacy.

As discussed below, the Court finds that this content-neutral statute is narrowly tailored, leaves open ample alternative channels of communication, and is not overly broad.  It follows, then, that the statute does not violate Mr. Doe’s First Amendment rights. Accordingly, Mr. Doe’s requests to enjoin enforcement of the statute (Dkts. #34 and #42) are DENIED and final judgment is entered in favor of the State.

June 25, 2012 at 09:06 AM | Permalink

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Comments


I am afraid that this law seeking to restrict icky pervs may well be counterproductive. If an icky perv is out trying to rape children, he isn't going to let a law preventing him from registering on social networking sites to stop him from preying on unsuspecting children.

that is why the approach of allowing icky pervs to register for such social networking sites but require that every comment, message, and page is flagged with a warning that the icky perv is a registered sex offender and that it is illegal for him to contact any child under the age of 18 an that violations should be immediately reported to the local police department so the icky perv can be arrested and sent back to prison where icky pervs belong. and naturally, an icky perv who refuses to disclose that they are a registered icky perv will be presumed properly to be solely up to no good and wanting to rape children - hence they will also be sent back to prison for their protection.

of course, if Indiana would have the foresight to pass Erika's Law they could offer the icky pervs a chance to avoid the restrictions and disclosure requirements on social media sites by receiving surgical castration including having their penises chopped off. that makes a lot more sense than simply banning icky pervs since an icky perv up to no good isn't going to let the fact that its illegal for them to try to pick up children on line stop them.

Erika :)

Posted by: Erika | Jun 25, 2012 12:37:11 PM

Report Calls Online Threats to Children Overblown

By BRAD STONE
Published: January 13, 2009

The Internet may not be such a dangerous place for children after all.

A task force created by 49 state attorneys general to look into the problem of sexual solicitation of children online has concluded that there really is not a significant problem.

The findings ran counter to popular perceptions of online dangers as reinforced by depictions in the news media like NBC’s “To Catch a Predator” series. One attorney general was quick to criticize the group’s report.

Posted by: George | Jun 25, 2012 1:14:14 PM

It surprises me how ever federal judges are beholden to popular misconceptions about sex offenders. For one, the judge mentions that 1 in 7 number, but fails to mention or realize that most of those solicitations are from peers, and that the number of sex offenders using social media to prey on children is likely way overblown. Second, she quotes from SCOTUS' opinion in Smith v Doe that the recidivism of sex offenders is "frightening" when the DOJ's own stats show SO's at a much lower rate of reoffense than other types of criminals.

It wouldn't be so bad if that were a politician parroting misconceptions like that, but when a federal judge does it to make law, it's serious business.

Hopefully the ACLU will prevail at the circuit level. At least Indiana's got at least two other districts going against it, maybe a third if I can get my way.

Posted by: Guy | Jun 25, 2012 4:55:10 PM

What an ignorant judge. Children use EVERYTHING. I mean, where the hell are sex offenders supposed to go, and where are they allowed to exist? Inside strip clubs and bars?

The internet is the future for many people. Banning someone from the internet for life is just ridiculous. People use internet networks for jobs, their social life, everything.

The problem with sex offender lists is that they are absurdly overbroad (100k in California alone!) and they are absurdly restrictive. Sex offender status is the same kind of institutionalized discrimination that the Nazis implemented against the jews in the 30s, only worse because sex offenders are a much smaller, much more defenseless, universally reviled minority.

Posted by: lawguy | Jun 25, 2012 5:25:49 PM

Ericka, as always, you are insane.

I could see requiring a sex offender "icky perv" (you know lots of sex offenders are teens who had consensual sex, or guys caught pissing in public, or various other non-predatory crimes, right?) to disclose his social networks and emails to law enforcement (not the public) so that law enforcement could monitor them if appropriate, but putting a flag saying the guy is a sex offender on everything he does is ridiculous and more a means of humiliating and punishing someone than actually protecting anyone.

Also, you seem to have a 5 year old's understanding of anatomy. You know castration means cutting off a guy's balls, not his dick, right? I'm sure you've love to chop off dicks because you hate them, or something, but that is not what people talk about when they discuss castration.

Posted by: lawguy | Jun 25, 2012 5:36:37 PM

just another emptyheaded hate filled ass whipe who needs a their empty head removed

Posted by: rodsmith | Jun 25, 2012 6:34:23 PM

lawguy:

Erika has a fascination with icky pervs and castration. To each their own I suppose.

Posted by: Guy | Jun 25, 2012 10:13:28 PM

The problem is not with this judge necessarily but with the criminal terrorists who created the "law" in the first place.

It is far past time to deal with these criminals. I would love to see them start to get murdered. Not enough of them can be murdered fast enough.

But, that's not a job I'm willing to do. So, today, just for the Criminal State of Indiana, I will go hang out with some children where no one knows I am Registered. I think I will go swimming with them. You know what the Registry Terrorists need to do next? Outlaw swimming pools.

Posted by: FRegistryTerrorists | Jun 26, 2012 2:06:18 PM

lawguy, if the sex offender registration, residential restrictions, and internet restrictions are so awful, male sex offenders should jump at the chance to be castrated and have their penises chopped off (happy?) to be able to avoid them. Erika's Law would merely give them that choice.

erika :)

Posted by: Erika | Jun 26, 2012 2:10:31 PM

of course, some icky perv offenders are such that they would not be given the choice and be forced to undergo both castration and penis removal as well as registration, residentcy restrictions, and internet restrictions.

when it comes to protecting children from icky pervs, you cannot possibly be too careful :)

Erika :)

Posted by: Erika | Jun 26, 2012 2:13:51 PM

Erika:

Nevermind that the solutions which to advocate for are actually part of the much broader problem which serve to perpetuate child sexual abuse. You say you're about protection, but you're not. You can't go two posts without fantasizing about physically mutilating people -- people who, by the way, have ostensibly paid for their crimes and have a generally low rate of recidivism according to the folks at the DOJ.

If you, the public, politicians, or anyone else really were actually about protecting children, then methinks these conversations would skew somewhat more towards the realm of rationality and empricism, and less towards the masturbatory (forgive the phrasing!) fantasies of chopping off body parts, which, by the way, would actually prevent people who are determined to reoffend from doing so, but certainly *would* prevent those individuals from trying to have a normal life from ever actually doing so. Much like many of these laws don't actually prevent anyone who is determined to reoffend from doing so, but do prevent everyone else from having a semi-normal life after they've paid their debt.

I'm not here to say that you can't continue to have your fascination with calling SOs icky pervs and continually musing about forced removal of genitalia for a broad base of individuals, but what I do mean say is that you shouldn't be allowed to wrap yourself in the veil of save-the-children without someone point out that the very policies for which you advocate are harmful to your stated goals which evince either an unwillingness to look at the issue from a rational perspective, or that your stated goals aren't your actual ones.

Cheers.

Posted by: Guy | Jun 26, 2012 5:01:46 PM

Guy,

if you prefer to talk about realistic solutions to the icky perv problem, Erika's Icky Perv Solutions is here to turn hysteria into profit (I mean with visionary ideas that will protect children while allowing sex offenders to live and work in a safe environment).

There are two ideas: for coastal states there is the icky perv island concept. In this, sex offenders would have the opportunity to move to an off shore treatment resort where they could live safely away from society's wrath. icky pervs living on Erika's Icky Perv Island would be able to work in jobs - even practice law :)

for more inland states where an icky perv island is not feasible, sex offenders would be able to move to an exclusive gated community Erika's Icky Perv Village - there in a small village, icky pervs could live and work away from society. And yes, while the razor wire surrounding Erika's Icky Perv Village would be facing in, it would be there to protect the icky pervs from society.

both of these concepts are sure to not only protect society from icky pervs and protect icky pervs from society - they are also sure to generate large profits for Erika's Icky Perv Solutions. Because of teh ever increasing restrictions on icky pervs in society we anticipate a large demand which will only increase as more and more draconian restrictions are placed on sex offenders.

You may even want to consider investing large [or small, I'm not picky] sums of money into Erika's Icky Perv Solutions because my business model is solid :)

Erika :)

Posted by: Erika | Jun 27, 2012 11:26:51 AM

Guy (Jun 26, 2012 5:01:46 PM):

Not that anyone actually cares, but if the Registries didn't exist I would be able to live a much more normal life.

That would be possible because I could stop forcing myself to be around children all the time. I also waste a lot of time hanging around in various places looking at children and fantasizing how I could rape or kidnap them. I could stop doing that. I do that probably every day now, not because I have ever had any interest doing that with children but rather I just try to figure out exactly how it is or why the Registry Terrorists dream that their BS Registries, and even more moronic, worthless laws, do anything except put children in danger.

Registry Terrorists should be forced to be listed on a Registry for a few years so that they could effectively learn what a worthless crock it all is. It would be great if they weren't so clueless. They could learn firsthand that it doesn't do squat to protect anyone but does make a large percentage of Registered people not care about other people. Oh never mind, I forgot what TarlsQtr taught me - all those people were exactly like that before they were Registered.

Amen what you said about Ericka. I thought she was interesting at first but I don't read her posts any longer. Anyone who advocates castration or isolation as a general solution has nothing to contribute. I'm just praying that Erika has some sons and they get convicted of a sex crime one day.

Posted by: FRegistryTerrorists | Jun 27, 2012 1:33:12 PM

personaly i think erika is in fact a CEO of one of those criminal corp's that are making billion out of the "sex offender solution"

as such she's jsut a big bag of wind!

Posted by: rodsmith | Jun 27, 2012 3:36:49 PM

Okay - I'm going to put this out there just as plainly as it is possible - GOVERNMENT AND THE LEGAL SYSTEM SHOULD NOT BE RESPONSIBLE FOR MONITORING WHAT OUR CHILDREN DO-THAT IS A PARENTS RESPONSIBILITY!!! That being said, I can personally state that not all offenders, regardless of their crime, re-offend nor do they have the desire to utilize a PUBLIC website to do so. The statics used in this decision are so outdated and worthless that they should be disposed of and a new study completed. Our society, again based on personal knowledge, continues to punish all offenders regardless of their past over and over and over again - where does it stop? If we are going to pass laws that places additional limits on sex offenders, lets add in other criminal acts such as speeding. If you have 1 speeding ticket in the first 5 years of your driving privilege, you are banned from ever driving again. Harsh you probably say, and I would agree, so why does a person who makes a bad decision and commits a crime, serves his/her time for said crime, and makes all attempts at becoming a successful and upstanding citizen still have to be limited on what s/he does, goes, says, or accesses on the internet? The stupidity has to stop! I understand and agree with protecting our children but to do that means that parents need to be responsible for what they allow their children to do - playing outside alone for hours at a time is more dangerous then logging on to Facebook. If a parent would look at the history of their child's internet activity, they could monitor unwanted advances and report THAT PERSON, not group together people based on their past. Everyone has heard that a person's past is their past, a lesson learned to allow for a more productive future - so why make additional hurdles for those that only want to live their life in peace. I am all for full prosecution for those who are continuing to commit crimes, but if that is not the case - leave people alone. Here's a fact...most child predator's are rarely caught as most children fail to disclose until well into their later years, adulthood, if ever. What about those who are never caught - they get free reign to continue their behaviors? What about the 17 year old who had CONSENSUAL sex with a 14 year old and is now charged as a sexual predator -- happens every day! That child is now labeled and can never utilize modern conveniences. There are way to many factors to allow for a ban as broad as this one!

Posted by: JustMyOpinion | Jun 27, 2012 6:01:14 PM

oh i know justmyopinion must new current studies show a 5-15% reoffence rate overall. Which proves the registry was put in place based on LIES or OUT AND OUT FRAUD! by the govt!

it's now a MULIT BILLION dollar a year industry....hince the FRAUD!

Posted by: rodsmith | Jun 27, 2012 9:16:10 PM

rodsmith, I wish :)

I'm just a cute young attorney with a dream of getting my law school loans paid off before I'm old. yes, realistically I know that the existing players in the fear for profit industry would never let Erika's Icky Perv Solutions get off the ground, but can't a girl dream? ;)

its better to make millions selling candles to people than to curse the darkness, you know.

Erika :)

Posted by: Erika | Jun 28, 2012 9:20:34 AM

Read this, look these articles up. Research how many innocent people have been executed, including Troy Davis last year in Georgia. WAKE UP AMERICA FOR GOD'S SAKE, WAKE UP!!!!!

My name is Roger Mann, I am an advocate for real justice and real justice cannot be as long as we have justices sitting on the supreme court stating that it is not unconstituional to execute an innocent person or that mere innocence is no reason to overturn a death conviction.

Congress may be an elected office and justices to the supreme court are appointed for life but either can be impeached for just cause. Interpreting the constitution which is written in plain, easy to understand english and needs to interpretation is just cause!



WAKE UP AMERICA
All tyranny needs to gain a foothold is for people of good conscience to remain silent.
IT'S TIME FOR ALL AMERICANS TO STAND AND SPEAK UP
MUST READ ARTICLES
The Infallible Prosecutor: Google it
10,000 innocent people convicted each year
Scalia's death row lunacy: Google it
Most registered sex offenders are innocent
www.wikipedia.org
Type censorship in the U.S. in the search box
IF YOU DON'T KNOW YOUR RIGHTS
YOU DON'T HAVE ANY
Jury nullification: A fundamental right!

Indiana Constitution: Article1: Section 19:
In all criminal cases whatever, the jury shall have the right to determine the law and the facts. The 9th and 10th amendments to the constitution of the United States means the same thing.

An unjust law is not a law at all and any person charged with violating an unjust law has not violated any law and should be found not guilty simply because the law is unjust!
WE MUST PROTECT OUR CONSTITUTIONS


Posted by: Roger | Oct 11, 2012 4:00:34 PM

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