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January 23, 2013

Seventh Circuit finds unconstitutional Indiana statute prohibiting sex offenders from social media

The Seventh Circuit today handed down a significant new media and sex offender First Amendment ruling in Doe v. Prosecutor, Marion County, Indiana, No. 12-2512 (7th Cir. Jan 23, 2013) (available here).  Here is how the 20-page unanimous panel ruling gets started:
A recent Indiana statute prohibits most registered sex offenders from using social networking websites,instant messaging services, and chat programs. John Doe, on behalf of a class of similarly situated sex offenders, challenges this law on First Amendment grounds. We reverse the district court and hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.

I am pretty sure this is the first significant circuit court constitutional ruling on this kind of state sex offender internet prohibition, and a quick skim suggests that this Doe ruling is a fairly thorough and thoughtful review of the challenging legal and policy issues raised in this setting. I would guess that Indiana will seriously consider seeking en banc review and/or a cert petition in an effort to preserve its statute, but I would also predict that the Justice may think these issues ought to percolate more before granting review.

UPDATE This Politco piece about the Doe ruling provides some information about similar rulings and a statement from the Indiana AG in reaction to the decision:

A similar law in Louisiana was thrown out in February of last year, though the state then passed a revised law requiring sex offenders to disclose their status on social networks, and a Nebraska judge in 2009 blocked parts of a sex offender law that restricted Internet access.

Indiana officials did not know Wednesday whether they would appeal the decision.  “The Indiana Legislature made a policy decision in 2008 that the state’s reasonable interests in protecting children from predators outweighed the interest of allowing convicted sex offenders to troll social media for information.  We have worked with county sheriffs and prosecutors in our defense of the legal challenges to these protections of our children, and we will need to review this 7th circuit ruling to determine the state’s next steps,” Indiana Attorney General Greg Zoeller said in a statement.

January 23, 2013 at 12:12 PM | Permalink

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Comments

In the opinion, the Court makes the obvious point that, in response to the state's argument that these laws are intended to deter sexual solicitation of minors, deterrence is one of the main points of criminal law to begin with and there are already substantial penalties in place for solicitation. While an additional punishment might make that penalty greater, the deterrence effect is questionable (i.e., if a sex offender is already willing to break the law to solicit a minor, the value of another penalty is dubious).

Posted by: Guy | Jan 23, 2013 3:52:22 PM

I work as a reader/writer for a local college.

I thought I would add something that I just read in yesterday's Alternet blog that alleges that New York City police are sexually assaulting several young black men whom they stop and frisk for no other reasons than the suspects' race and gender. Now, several young black men accuse the police (including several female police officers) of sexually assaulting them by forcibly fondling them and so forth. If police cannot find any guilty person to pick up in any given day, they have to arrest innocent people in order to meet their mandatory daily arrest quotas. If these allegations of sexual assault by police are true, then why aren't the so-called victims' rights and "law'n'order" groups demanding swift punishment for these police officers? If these officers are guilty and if these sex offenses by police are mandated as a part of Mayor Bloomberg's policies, then throw the book at these officers and their mayor!

Posted by: william r. delzell | Jan 24, 2013 9:35:58 AM

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