By Jessica Belle

While the New Mexico legislature is considering a bill to ban sex offenders from using any social media site, the Seventh Circuit struck down a similar Indiana law as violating Indiana registered sex offender’s right to free speech. Although Facebook and other social networking sites have successfully worked with state attorneys general on removing sex offenders from these sites, the most recent waive of state legislation indicates that prosecutors and other members of the community think the technology community is not doing enough. The crux of the issue is how much, if any, online free speech registered sex offenders should have.

The Indiana law at issue in the Seventh Circuit’s opinion prohibited a registered sex offender from using “social networking site[s]” or “instant messaging or char room programs” if the sex offender knows those under 18 years of age are permitted to access these sites or programs. This law was enacted in 2008 and broadly applies to anyone required to register as a sex offender, § 35-42-4-12(b)(1)-(2), with an exception for sex offenders who were close in age and had a consensual relationship with their victim, § 35-42-4-12(a). Though all parties agree that Indiana has an interest in protecting children from convicted sex offenders, in this case the Seventh Circuit held that the State too broadly limited the rights of sex offenders.

The case was brought as permanent injunction against the law by a class of sex offenders currently not subject supervised release and to whom the law in question applies. Following a bench trial with only four witnesses—two class members and two social media experts—the federal district court judge found the law was “narrowly tailored to serve a significant government interest.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

On appeal, the Seventh Circuit found that the law bars registered sex offenders from expressing themselves through social media and inhibits their ability to receive and exchange information. Holding that the Indiana law is be content neutral, the court applied intermediate scrutiny and found the law was not “narrowly tailored to serve a significant government interest.” Ward, 491 U.S. at 791. Instead, the Court held that the “law targets substantially more activity than the evil it seeks to redress” and therefore violates the registered sex offenders’ First Amendment rights.

The Seventh Circuit opinion accords with the two other federal rulings on other state laws restricting registered sex offenders from using social media. In February 2012, Chief Judge Brian Jackson held a Louisiana law that prohibited registered sex offenders from “using social networking sites, chat rooms and peer-to-peer networks” was “unconstitutionally overbroad and void for vagueness. However, just a few months later Louisiana passed a new, narrower law requiring registered sex offenders to list their status on social media.

In October 2012, senior U.S. District Judge Richard Kopf stuck down a Nebraska9 law that sought to limit sex offenders—whose crimes were against children—from using the Internet. The Nebraska law that required these sex offenders to inform the government any time they post online, consent to search and monitoring of all remote communication devices and refrain from any use of social networking sites, instant messaging and chat room programs that a minor could access. Judge Kopf held these provisions were not narrowly tailored to achieve the State’s interest and raised other constitutional concerns. Other states like Illinois prohibit the use of social networking sites as a condition of sex offenders’ parole.

There has been no move to request cert review by the U.S. Supreme Court of the Indiana case. However, the debate over registered sex offenders’ right to free speech online continues across the nation. Technology companies should play close attention to this debate as they may be forced to assist states that seek to enforce laws limiting sex offenders’ access to certain online sites and programs.