August 01, 2012

Statute Blocking Sex Offenders from Social Networking Sites is Constitutional

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Doe v. Prosecutor, 2012 WL 2376141 (S.D. Ind.).

Statute that prevented sex offenders from using social networking sites to communicate with potential minor victims was not overly broad because it was limited to sites that allow minors, did not affect many other online activities, and served a legitimate prevention function.

The Indiana legislature made it a misdemeanor for specified registered sex offenders to use social networking sites, chat rooms, and instant messaging programs that allow access by persons under the age of 18. Plaintiff sought an injunction and declaratory judgment arguing that the law violated the First Amendment. The District Court for the Southern District of Indiana heard the case.

The district court first analyzed the growth of social networking sites. In particular it noted use of Facebook by Indiana residents was widespread. Nearly 50% of residents use Facebook and the site allows access for persons over 13. Further, Facebook accounts are becoming integrated with other Internet use including some news sites.
The district court discussed how this widespread use has been shown by anecdotal evidence including the show "To Catch a Predator” and countless news stories, that social networking sites are frequently used by sexual predators. One study found that one in seven youth reported receiving online sexual solicitations.
Plaintiff claimed the law infringed on his First Amendment rights to communicate, receive information, and freely associate. The district court held that these rights were implicated in Internet communications.

The court said the legislation was content neutral as it was tailored to serve a significant government interest and left open alternate channels for communication. As to how narrowly tailored the law is, the law affects communication outside its intended purpose, such as making comments on the Indiana Star website which requires posters to log in with their Facebook accounts.

Still, most Internet activities are still open to the plaintiff. The statute does not cover e-mail, listservs, or social networking sites restricted to adults. The court also noted the law does not prevent individuals from using sites that prohibit minors even if minor might be able to falsify their age and make an account. Further, the plaintiff has numerous traditional types of communication available to him. The court concluded the law was not overly broad.

Plaintiff also claimed the law was unnecessary because soliciting minors over a computer network is already illegal. The district court concluded that the criminal statute prohibiting solicitation of a minor aims to punish sexual offenders, while the social networking law aims to prevent and deter sexual exploitation.

Based on the above, the district court denied the plaintiff’s request for an injunction.