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October 20, 2017

Relying on Packingham, Federal judge strikes down Kentucky limit on sex offender internet access

As reported in this local piece, "Kentucky’s registered sex offenders have the constitutional right to use Facebook, Twitter and other online social media, a federal judge ruled Friday." Here is more on a ruling that seems like a pretty easy application of the Supreme Court's work in Packingham v. North Carolina earlier this year:

Ruling in a lawsuit brought by a Lexington child pornography defendant identified only as “John Doe,” U.S. District Judge Gregory Van Tatenhove struck down Kentucky’s sweeping restrictions on Internet access for registered sex offenders.

“This is a very important decision,” said Scott White, a Lexington attorney who represented Doe. “The laws effectively deprived anyone on the sex offender registry of access to the most effective forms of communication that we have today. It was a complete suppression of speech.”

One law prohibited sex offenders from using social networking websites or instant messaging or chat rooms that potentially could be “accessible” to children — which is to say, much of the Internet. The other law required sex offenders to keep their probation or parole officers updated on all of their email addresses and various online identities.

Van Tatenhove cited a unanimous decision by the U.S. Supreme Court in June that struck down a similar North Carolina ban on social media for sex offenders, in part because so many civic institutions — from elected officials to news media — are now tied into social media.

For example, the Herald-Leader’s Kentucky.com website would be off-limits to sex offenders under the state’s ban because it has a comments section open to the public, Van Tatenhove wrote.

Kentucky’s law “burdens substantially more speech than necessary to further the commonwealth’s legitimate interests in protecting children from sexual abuse solicited via the Internet,” Van Tatenhove wrote.

“Indeed, rather than prohibiting a certain type of conduct that is narrowly tailored to prevent child abuse, the statute prevents Mr. Doe and others similarly situated from accessing what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge,” he wrote.

October 20, 2017 at 04:16 PM | Permalink



Posted by: Docile the Kind Soul | Oct 20, 2017 8:07:41 PM

It that supposed to be an abbreviation for SIeG Heil? It would make sense as the term means "hail victory".

Posted by: Just passing by | Oct 20, 2017 8:41:51 PM

Are any laws narrowly tailored to "chat rooms" and the like which are specifically where minors hang out and engage in discussions and trade photos and the like? A bit further, websites geared for children, such as a Disney Channel community or the like?

If the law is going to apply to anything "accessible" to children, that can be most anything. A law that is short term -- such as a defendant (though there the person is innocent until proven guilty) or someone on probation for a limited period of time also would be a harder case. We thus have the limits of open-ended language the concurring justices were concerned about.

Posted by: Joe | Oct 21, 2017 12:39:43 PM


The problem is practicable. There are very few places on the internet that children congregate where adults don't. In part this is a result of the anonymous nature of the internt where children can easily poses as adults so they have no need to congregate in a virtual playground. It is also a part of the fact that the legal burdens and liabilities of developing such online playgrounds has discouraged many entrants. So while one could propose the language you suggest and a legislature could implement it the reality is that it would be a feel good law only.

Posted by: Daniel | Oct 21, 2017 1:51:23 PM

I'm trying to flesh out the particulars here so it is not a matter of me supporting such a law or thinking it overly useful, to put out there what is often my general approach.

I think children do as a whole tend to go certain locations as much as your average ten year old very well might read the NYT at some point but not likely regularly. This is seen in part by the advertising such locations choose. I'm not really sure about the barriers to entry point either.

As to posing as an adult, the overall concern here is child abusers trolling for victims. Now, someone might find a means to do that in locations where people pretend to be an adult (such at a club), but there are certain locations (AOL Chats, e.g., were largely used by minors) where children are interacting as children & adults hang out trying to troll for them.

Now, these laws very well might be overall not very useful, including trying to catch the people involved. But, gather there are ways to track certain people, especially if they are required only to use certain devices. For instance, if a child molester uses a local library computer, the computer can be tracked and means are present to determine if the person has a certain "signature" etc. even if the person uses fake information to sign on to the computer as compared to let's say a library card.

Posted by: Joe | Oct 21, 2017 2:35:39 PM

Enforcing such laws like the Kentucky law that the courts have just thrown out will not protect children. If anything, such laws could endanger those who attempt to enforce such Micky Mouse regulations.

Oh, and that reminds me: with Halloween coming up, several more Micky Mouse laws exist in most states that require former sex offenders to be in their homes with the porch lights off and access to the police without a search warrant. This law, instead of protecting children, could put police and other law enforcement personnel to needless risk of injury or death.

I can imagine two scenarios: the accidental one; and the deliberate one.

If a former sex offender has to shut off his or her porch lights, especially in a near deserted neighborhood, he or she might mistake a police or parole officer for a prowler or vigilante and use an illegal firearm to "stand one's ground" by shooting the unsuspecting officer. When the former offender realizes that he or she has killed a law enforcement person, he or she might panic and attempt to flee and to resist arrest by any means necessary, fearing that surrendering could mean the death house or an extra judicial shooting by a police officer angry over the killing of a fellow officer.

The deliberate scenario could involve a former sex offender who is embittered about having to still register and to endure restrictions that other types of former offenders do not. He or she might decide to get even with the law by booby trapping his or her home with the intention of maiming or killing any law enforcement officers who invite themselves into his or her domicile.

If I were the chief of police, I would worry very strongly about any laws that not only fail to protect crime victims/survivors, but which needless endanger my fellow officers in the process.

I'd hope most police departments would agree with this advice.

Posted by: william r. delzell | Oct 21, 2017 3:51:17 PM

Rights should be abridged after their exercise has caused a harm.

Posted by: David Behar | Oct 21, 2017 7:01:40 PM

Well David you statement flues in the face of 200+ years of our constitution. So when are you moving to Russia or red China?

Posted by: Rodsmith3510 | Oct 21, 2017 7:21:58 PM

"Rights should be abridged after their exercise has caused a harm."

Of the person who has caused the harm, not to everyone who exercises the right.

(We wouldn't ban everyone from having sex after it was discovered that someone was raped, so we shouldn't silence and disarm everyone just because some people slander and shoot others.)

And we do so by locking the person up in a mental hospital or prison. Once they have "served their time" they get their rights restored. If they are too dangerous to exercise basic fundamental human rights, then we keep, or put them in, a mental hospital until they are no longer a danger.

A person who is too dangerous to live near a school, go online, or vote should not be walking the boulevard of broken dreams--they are by definition "mentally insane", i.e., unable to stop themselves from victimizing others.

Posted by: Edward K | Oct 22, 2017 2:17:20 AM

Rod and Edward. I do not believe in general deterrence, but only in specific detrrence. My statement refers only to one individual, after harm has been shown to result from the individual's behavior.

I am the one that has argued on behalf of the defense. Bruce refuses to give me fairness credit or to follow my lead.

Any statement about general deterrence, sending messages or prevention in a tribunal should result in a motion for a mistrial.

It violates procedural due process rights to a fair hearing to punish a guy to scare other people he has never met, over whom he has no control, and who have not yet decided to commit a crime. It is also delusional, since it assumes that potential, future criminals can be influenced by the punishment they have never heard of.

There is social learning. This is where one sees someone else get punished, and one is less likely to do a behavior. However, even you lawyers have to research law databases to find precedent. How is an uneducated, impulsive, and driven criminal supposed to gt notice?

Posted by: David Behar | Oct 22, 2017 6:19:51 AM

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