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.