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October 18, 2012

Federal judge finds unconstitutional Nebraska's statute criminalizing all sex offender use of social networking sites

As reported via this post by David Post at The Volokh Conspiracy, yesterday US District Judge Richard Kopf declared unconstitutional a portion of Nebraska's sex offender registry law making it a crime for registered sex offenders to make any use of any social networking web site.  The full, lengthy opinion is available at this link, and here is how it begins:

Earlier I paraphrased Justice Oliver Wendell Holmes and observed that if the people of Nebraska wanted to go to hell, it was my job to help them get there. By that, I meant that it is not my prerogative to second-guess Nebraska’s policy judgments so long as those judgments are within constitutional parameters.  Accordingly, I upheld many portions of Nebraska’s new sex offender registration laws even though it was my firm personal view that those laws were both wrong-headed and counterproductive. 

However, I had serious constitutional concerns about three sections of Nebraska’s new law.  After careful study, I granted summary judgment regarding one claim and decided that a trial was necessary to resolve my other concerns.  The trial has now been concluded, and I have decided that the remaining portions of Nebraska’s sex offender registry laws are unconstitutional.

In short, I can only help Nebraskans get to the figurative hell that Holmes spoke of if they follow a constitutional path.  For three sections of Nebraska’s new sex offender registry law, Nebraska has violently swerved from that path.  I next explain why that is so.

UPDATE: This new local article about this ruling provides some more information concerning the rulign and some reactions.  Here are excerpts:

On Thursday, Omaha attorney Stu Dornan, whose firm represented the men and women challenging the laws as John and Jane Doe, hailed this week's ruling, saying the laws had left people on the Nebraska Sex Offender Registry unsure whether they could text or email family members or even turn on a computer.

He said Kopf's ruling upheld the Constitution as a document that protects even sex offenders, who are viewed by many Nebraskans, as Kopf said in his order, as the lepers of the 21st century. "The Constitution, if it does not protect this group of people, it does not protect any of us," Dornan said....

As scathing as Kopf's 73-page order was at times, the judge did also set out a pathway for Nebraska lawmakers to cure it. "Plainly put: Concentrate on demonstrated risk rather than speculating and burdening more speech than is necessary -- use a scalpel rather than a blunderbuss," the judge said. As it was, Kopf said Nebraska lawmakers had gone too far, putting a stake through the heart of the First Amendment and gutting protections against suspicion-less searches....

At trial, the attorney general's office argued that the laws did not keep offenders from using the Internet entirely. But Kopf said the Nebraska Legislature went far beyond its purported purpose when it criminalized the provisions. "These statutes retroactively render sex offenders, who were sentenced prior to the effective date of these statutes, second-class citizens," he said. "They are silenced. They are rendered insecure in their homes."

He said lawmakers could draft a statute that required convicted sex offenders to provide Internet addresses that the state could track, rather than requiring sex offenders to constantly update the state about when and where they post, for instance. The state also could narrow social networking and chatroom restrictions to offenders who committed their crimes using the Internet, he said....

Shannon Kingery, a spokeswoman for Attorney General Jon Bruning, said his office respectfully disagreed with the court's decision. "We are reviewing the ruling and assessing our options," she said.

October 18, 2012 at 11:02 PM | Permalink

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Comments

There is still reason to have faith in the courts and Judge Kopf seems well versed in technology. One question.

"To be clear, requiring Internet identifiers and addresses, including designations for purposes of routing or self-identification, as permitted by the federal AttorneyGeneral’s Guidelines, is one thing." p 54

I couldn't access the document in the footnote, but does this imply the government should have all the personal identifiers that entail Internet use? If so, it would be like putting a GPS device on Internet use because it would be easy for the government to build a bot that constantly crawled for these identifiers and find wherever the user went. The bot would find the AG discussion example just as sure as if the registrant provided that content. And beyond GPS capabilities, it would find what comments the user posted there, which would chill that previously "anonymous" speech. There seems to be a contradiction here.

Posted by: George | Oct 19, 2012 1:10:38 AM

We all saw how well Judge Kopf did the last time he struck down a statute.

Posted by: Jack | Oct 19, 2012 7:29:14 AM

I read the following in a lengthy article about this:

"And Kopf found -- perhaps most surprisingly -- that the Legislature's intent was to punish sex offenders, based on comments made by State Sen. Scott Lautenbaugh, who introduced the bill, and Corey O'Brien, the man in the Nebraska Attorney General's Office who drafted it."

Too funny. Don't terrorists Lautenbaugh and O'Brien realize that they are supposed to lie about the intent? Have these terrorists learned nothing during the decade-plus long witch hunt?

Every time I read about terrorists such as this criminal legislature attempting to attack their Forced Registrants, it further solidifies my conviction that these terrorists need to be identified individually and the quality of their lives should be lowered by any legal means possible. They are attacking Forced Registrants, their spouses, and their children. Very often in idiotic and immoral ways. The favor should be returned.

Because the Registries exist, I am about to stop working for this week and I will be spending the weekend around lots of random children, as usual. I will have a lot of people in my home for much of the weekend who have no idea that I am Registered. It is extremely simple to do. I have proved to myself at least, that the Registries just harass everyone listed on them, the vast majority of whom are just living normally like anyone else. The Registries do nothing to reduce anyone's ability to commit a crime. And they certainly increase the desire to do so.

But enough of that crazy talk ... where are the rest of the Registries? Are we actually not serious about protecting children? If it saves one child, it's not worth it? Or rather, I think the fact that the Registries don't exist proves that the people who are *actually* serious about protecting children, actually pay attention to facts and know about the Registries. They are not the ignorant masses.

Posted by: FRegistryTerrorists | Oct 19, 2012 1:12:15 PM

"He said lawmakers could draft a statute that required convicted sex offenders to provide Internet addresses that the state could track, rather than requiring sex offenders to constantly update the state about when and where they post, for instance."

Sure enough, a virtual GPS device that can "see" what the user is doing. More restrictive than an actual GPS device.

Posted by: George | Oct 19, 2012 10:24:52 PM

Yea George i was thinking the same thing. It's hardly anonymous if every thing your doing is tracked by the state and anyone they decide to give the info too. Silly me i'm almsot 99% positive the USSC has ruled anonymous speech is guranteed by the Constitution.

Posted by: rodsmith | Oct 19, 2012 11:52:26 PM

I respect those who brought the suit. They have good jobs and want to keep them, but for those who already got fired, I suggest dragging these stalkers though as much mud as possible. If they want to know everywhere you go, make sure it is as raunchy as possible. Put all that raunchy stuff on their stalker hard drives. Hurt their eyeballs. Make them barf. All free speech. Make them eat it. Just don't view CP or try to chat with kids. Don't make any Internet threats either. Just make them eat free speech.

Posted by: Anon | Oct 20, 2012 1:07:00 AM

"Don't terrorists Lautenbaugh and O'Brien realize that they are supposed to lie about the intent? Have these terrorists learned nothing during the decade-plus long witch hunt?"

Sure they have! They've learned that they can be as candid about their intentions as they'd like, because no matter what, this registry and its collateral damage will always be protected and rationalized by the courts.

Posted by: Brian G. | Oct 20, 2012 2:33:56 AM

Brian:

It is very difficult to even try to respect a justice system which actively and intentionally subverts the Actual Words of the Constitution.

The SO Laws of this country are a joke and unless they are stopped, no one will have God given rights, only state permissions.

I am a retired engineer who worked many years with Federal government employees. They are a mostly a joke.

Posted by: albeed | Oct 20, 2012 10:09:33 AM

I'm with brian g and albeed. I'm still trying to figure out how they managed to "creatively interpet" "NO expost" to "NO expost EXCEPT in civil or sex crimes"

Posted by: rodsmith | Oct 20, 2012 5:30:06 PM

rodsmith: "I'm with brian g and albeed. I'm still trying to figure out how they managed to 'creatively interpet' 'NO expost' to 'NO expost EXCEPT in civil or sex crimes'"

Can't argue with that.

Posted by: Huh? | Oct 24, 2012 11:47:05 PM

I notice none of our big time lawyers has been willing to touch this one. You know why? There is no way in hell they can with a straight face.

Posted by: rodsmith | Oct 26, 2012 6:24:29 PM

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