Sunday, June 24, 2012
In her 19 page opinion in Doe v. Prosecutor, Marion County, Judge Tanya Walton Pratt of the Southern District of Indiana upheld the state's statute prohibiting some sex offenders from accessing social media.
She rejected Doe's First Amendment challenge, concluding the statute was sufficiently tailored and left ample alternatives of communication open.
The judge rejected the claim that the use of Facebook for the purposes this statute is meant to foreclose are already criminalized by another statute. Instead, she seemingly shifted the burden to Doe to suggest a more narrow statute that would achieve the state's goals:
That said, Mr. Doe’s argument is important for what it does not say. Tellingly, Mr. Doe never furnishes the Court with workable measures that achieve the same goal (deterrence and prevention of online sexual exploitation of minors) while not violating his First Amendment rights. Here, the statute bars a subset of registered sex offenders from visiting a subset of web sites that minors (and the public at large) use with regularity, which include Facebook, Twitter, Google Plus, various chat rooms, and various instant messaging programs. In other words, Mr. Doe is only precluded from using web sites where online predators have easy access to a nearly limitless pool of potential victims.
She then added her own rationale:
Given the high recidivism rates, it is obvious that many sex offenders have difficulty controlling their internal compulsions to commit these crimes. It stands to reason that many sex offenders might sign up for social networking with pure intentions, only to succumb to their inner demons when given the opportunity to interact with potential victims.
Regarding alternatives for communication, she readily conceded that
social networking is a prominent feature of modern-day society; however, communication does not begin with a “Facebook wall post” and end with a “140-character Tweet.”
But the list she provides of other "myriad feasible alternative forms of communications" may strike avid facebook users as odd: "the ability to congregate with others, attend civic meetings, call in to radio shows, write letters to newspapers and magazines, post on message boards, comment on online stories that do not require a Facebook (or some other prohibited account), email friends, family, associates, politicians and other adults, publish a blog, and use social networking sites that do not allow minors (e.g. LinkedIn and a number of other sites which allow only adults)." The LinkedIn exemption is interesting. While the statute itself seems unclear, and the judge admits that there was "some confusion on this point during the briefing," she concluded that "it is seemingly clear that Mr. Doe can use the professional networking web site LinkedIn."
According to an AP report by Charles Wilson, the ACLU will appeal.