A federal appeals court has struck down an Indiana law that imposes broad social media restrictions on most registered sex offenders, finding it unconstitutional.
On January 23, the U.S. Court of Appeals for the Seventh Circuit held that the law—which bars most registered sex offenders from using social networking websites, instant messaging services and chat programs—broadly bans protected speech rather than curtailing speech targeted to minors.
A ‘John Doe’ filed a class action in January 2012 on behalf of similarly situated registered sex offenders in the state, claiming that the law violated their First Amendment rights.
In June 2012, Judge Tanya Walton Pratt of the Southern District of Indiana found the law to be narrowly crafted to serve a significant state interest and that class members have ample alternatives, including social networking sites without minors, e-mail and message boards.
The Seventh Circuit reversed Pratt’s decision and remanded the case for her to enter judgment for Doe and issue a permanent injunction against enforcement of the law.
Judge Joel Flaum wrote the opinion in Doe v. Marion County Prosecutor, joined by Judge John Daniel Tinder and Judge John Tharp Jr. of the Northern District of Illinois, who sat on the case by designation.
“Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest, ” Flaum wrote. “ It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.”
Flaum noted that “the Supreme Court has invalidated bans on expressive activity that are not the substantive evil if the state had alternative means of combating the evil.”
He also observed that Indiana has other options for curbing inappropriate communication between minors and sex offenders.
He stressed that laws affecting the First Amendment require narrow tailoring: “Subsequent Indiana statutes may well meet this requirement, but the blanket ban on social media in this case regrettably does not.”
Kenneth Falk, legal director of the American Civil Liberties Union of Indiana, who argued for Doe, said, “We felt this law was fatally overbroad and not narrowly tailored and that’s what the Seventh Circuit found.…Indiana already has on the books laws that prohibit [sex offenders from] inappropriate communications with children. This law targeted innocent conduct that justifiably was not criminalized by the other laws.”
In an e-mailed statement sent through a spokesperson, Indiana Attorney General Greg Zoeller said the state’s 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.”
Frances Barrow, an attorney at the Indiana Attorney General’s office, argued for the state.
Sheri Qualters is a reporter for The National Law Journal, a Legal affiliate based in New York.