Seventh Circuit Overturns Indiana Law Prohibiting Internet Use by Sex Offenders –Doe v. Marion County Prosecutor

January 28, 2013 by David S. Seltzer

Because I frequently defend cyber crime charges involving sex offender registration, I was interested to see a recent Seventh Circuit opinion declaring an Indiana sex offender restriction unconstitutional. Doe v. Prosecutor, Marion County was a challenge by an anonymous Indiana sex offender to a law forbidding him and others like him from using social networking, chat and instant messaging services that allow use by minors. Doe alleged this was so broad that it violated the First Amendment rights of Indiana sex offenders. The district court dismissed the lawsuit, but the Seventh U.S. Circuit Court of Appeals reversed, finding that the law is content-neutral but too broad, forbidding a lot of speech that has nothing to do with improper contact with minors.

The Indiana law targets sex offenders convicted of certain crimes and not under any form of supervised release. All other offenders are forbidden by the law from knowingly using a social networking website, an instant messaging program or a chat room program that they know permits use by minors. The law doesn’t exclude covered sex offenders based on age of victim, time since the crime or the manner of the crime. It does exempt violators from prosecution if they ceased using the service as soon as they realized minors were permitted. Doe was convicted of two counts of child exploitation in Marion County in 2000 and released in 2003. His federal lawsuit alleged that the Indiana law violates his First Amendment rights. The district court certified a class of sex offenders to whom the law applies. But after a bench trial, it upheld the law, saying the law serves a significant state interest, leaves Doe ample other ways to communicate and is narrowly tailored.

On appeal, the Seventh Circuit found that the law is not narrowly tailored, so it fails an important constitutionality test. The state of Indiana certainly has an interest in protecting children from improper sexual communications, the court said, but the law burdens more speech than necessary to achieve that goal. The Seventh looked to U.S. Supreme Court cases involving complete bans, noting that the court has generally upheld bans on speech when the speech activity itself—such as signs cluttering public spaces—is the problem. By contrast, ordinances prohibiting handing out handbills were found too broad because the underlying problem, littering, could instead be handled by enforcing littering laws. Similarly, Indiana may prevent improper communications with minors by enforcing laws against online solicitation of minors or more narrowly tailoring an online communications law. The Constitution permits some over-inclusiveness if necessary to make the law work, the Seventh said, but this law goes outside those boundaries.

This decision no doubt upset many Indiana prosecutors and legislators, but I believe it’s an important affirmation of First Amendment rights, even for people that prosecutors don’t like. There’s a trend toward harsher and harsher post-prison restrictions on sex offenders. While it’s understandable that the public is concerned about protecting children, many of these laws are very broad. In addition to bans on online communications, like this one, restrictions on where sex offenders may live are increasingly under fire because they make it difficult to find any home. Sex offender registration can also lead to further criminal charges. All of this can ultimately hurt society by making it harder for offenders to establish new, clean lives.

If you’re charged with a crime involving computers, technology or the Internet, don’t wait to call Seltzer Law, P.A. Lead attorney David Seltzer is a former cyber crime prosecutor from the Miami-Dade State’s Attorney’s office with substantial experience defending cyber crime charges around the country. For a free, confidential consultation, send us an email or call 1-888-THE-DEFENSE (1-888-843-3333).

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