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Friday, November 2, 2012
by Michael Loatman
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
The Indiana judge was not convinced
that the increasing use of social media made the ban
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
Copyright 2012, The Bureau of
National Affairs, Inc.
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