Is social media so pervasive in modern society that banning its use by a disfavored group is unconstitutional, even when there is a significant governmental interest in favor of the restriction?
Three courts have grappled with this question and split on whether Nebraska, Indiana, and Louisiana restrictions on sex offender access to social media violates the First Amendment. Federal district courts in Nebraska and Louisiana held the bans unconstitutional, while a federal judge upheld Indiana's law (Doe v. Nebraska, D. Neb., No. 4:09-cv-03266-RGK-CRZ, 10/17/12); (Doe v. Prosecutor, S.D. Ind., No. 1:12-cv-00062-TWP-MJD, 6/22/12); (Doe v. Jindal, 853 F. Supp. 2d 596 (M.D. La. 2012)).
State legislatures have passed the laws in hopes of ensuring that sex offenders do not use social media platforms to contact minors. The Indiana court noted the legislature believed social media had "effectively created a 'virtual playground' for sexual predators to lurk."
The Nebraska judge who struck down the state's law agreed that protecting children from online predators was a significant governmental interest. Nonetheless, he argued that the state should have "use[d] a scalpel rather than a blunderbuss" when crafting legislation and applied the ban only to those convicted of using online sites to prey upon children.
His criticism of the law also included his observation that the law was indifferent to when "the offender legitimately needs access to the banned sites to make his or her living" or when "the offender legitimately needs access to the banned sites to obtain news that probably cannot be obtained in another way."
The Indiana judge was not convinced that the increasing use of social media made the ban unconstitutional.
The judge said she "readily concedes 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.' "
Despite the law, restricted sex offenders still could publish a blog, leave comments on news sites that do not require Facebook accounts, and email their friends, family, and politicians, the Indiana judge said. A sex offender also could use any social media platform restricted to adults, she added.
Copyright 2012, The Bureau of National Affairs, Inc.
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