Social Networking Restrictions on Sex Offenders

In last week’s news roundup, Shea mentioned Doe v. Prosecutor, Marion County, Indiana, a recent case in which the United States Court of Appeals for the Seventh Circuit struck Indiana’s law prohibiting sex offenders from using social networking websites on First Amendment grounds. North Carolina has a similar crime, a Class I felony under G.S. 14-202.5, which has resulted in an increasing number of convictions each year since its enactment in 2008: 7 in fiscal year 2009/10; 29 in 2010/11; and 47 in 2011/12. With that in mind, today’s post takes a closer look at the Indiana case. Doe was a class action filed in federal court by an Indiana man on behalf of a class of similarly situated sex offenders. The suit challenged the constitutionality of Indiana Code § 35-42-4-12, which prohibits certain sex offenders from knowingly or intentionally using a “social networking web sites” or “instant messaging or chat room programs” that allow access or use by minors. The federal district court judge upheld the law, finding it to be appropriately tailored to meet the state’s legitimate interest in protecting children from predators and not “substantially broader than necessary” to meet that end. The Seventh Circuit reversed.  The court applied the version of intermediate scrutiny applicable to content neutral restrictions on speech like this one: the law must be “narrowly tailored to serve a significant governmental interest” and must “leave open ample alternative channels for communication of the information.” Slip op. at 8. There was no question that the government’s interest—protecting children—was significant, but the court concluded that the law’s complete ban on social networking impacted too much communication falling outside the “targeted evil.” Slip op. at 10 (“[I]llicit communication comprises a minuscule subset of the universe of social network activity.”). The court analogized to a blanket handbill restriction, ostensibly designed to prevent litter, that was long ago overturned by the Supreme Court on First Amendment grounds. Schneider v. Town of Irvington, 308 U.S. 147 (1939). If the goal is to prevent litter, the Schneider court said, you can’t restrict the speech of the handbill distributor. Rather, you should enforce the existing littering laws on the handbill recipients who drop the paper on the ground. Likewise, you cannot prevent children from being solicited online by preventing all online communication. Rather, you should enforce existing solicitation crimes. The state countered that it should not have to sit and “wait until a child is solicited by a sex offender on Facebook” before taking action. But the court said the state failed to present any evidence that the restriction was effective, or that the pool of offenders covered by the social media restriction (essentially all sex offenders) presented a demonstrated risk of preying on children online. Slip op. at 17 (“[T]he Indiana legislature imprecisely used the sex offender registry as a universal proxy for those likely to solicit minors.”). In the absence of such evidence, the law could not be said to be narrowly tailored, and so the court struck it. Could North Carolina’s social networking restriction face a similar fate? Perhaps. Our law applies to all sex offenders, not just to those whose crimes were against minors. And its definition of a “commercial social networking Web site” is broad, including any site that permits minor children to join and:

• Derives revenue, through membership fees, advertising, or other sources;
• Facilitates social introduction between two or more persons for friendship, meetings, or information exchanges;
• Allows users to create Web pages or personal profiles that may be accessed by others; and
• Provides mechanisms for users to communicate with one another. G.S. 14-202.5(b).

The definition excludes sites that provide only one discrete service (photo-sharing, email, instant messaging, chat room, or message board), and sites whose primary purpose is to facilitate commercial transactions involving goods or services. G.S. 14-202.5(c). Whatever those things mean exactly, it’s pretty clear that the North Carolina prohibition sweeps beyond prototypical social networks like Facebook and Twitter. Doe appears to be the first case of its nature decided by a circuit court of appeals. There is no similar case law from the Fourth Circuit. Louisiana’s former social networking restriction—which was more limited than Indiana’s in that it only applied to sex offenders convicted of crimes against minors, but probably broader in the social media it restricted—was invalidated by a federal district judge last year on overbreadth and vagueness grounds. Doe v. Jindal, 853 F. Supp. 2d 596 (M.D. La. 2012). Nebraska’s similar law met a similar fate in a civil rights action, Doe v. Nebraska, 2012 WL 4923131 (D. Neb. Oct. 17, 2012), which included a sizeable attorney fee award to the plaintiff sex offenders, 2012 WL 6681855 (D. Neb. Dec. 21, 2012) ($292,564.88). Our state appellate courts have yet to weigh in, but I know of at least one case pending before the court of appeals. A thoughtful article on North Carolina’s social networking prohibition by one of the lawyers involved in that case is available on the N.C. Bar Association webpage, here. I’m sure I’ll write about the North Carolina case when it’s decided—both here and, briefly, on Twitter (@jamie_markham).