Court Overrules Indiana's Ban on Sex Offender Social Media

Indiana sex offenders can resume tweeting, thanks to a recent decision from the Seventh Circuit Court of Appeals.

Wednesday, the Chicago-based appellate court overturned an Indiana law banning sex offenders from social networks, IndyStar.com reports.

The law, Ind. Code § 35-42-4-12, prohibited certain registered sex offenders from "knowingly or intentionally" using a social networking web site, instant messaging, or a chat room program that the offender knows allows users who are under 18. The statute did not differentiate based on the age of victim, the manner in which the crime was committed, or the amount of time since the underlying offense, (though it exempted perpetrators of so-called Romeo and Juliet relationships where the victim and perpetrator were close in age and had a consensual relationship).

The American Civil Liberties Union of Indiana challenged the sex offender social media ban on First Amendment grounds. Last year, District Judge Tanya Walton Pratt upheld the law, finding that Indiana had a strong interest in protecting children, and social networking had created a "virtual playground for sexual predators," according to IndyStar.com.

The Seventh Circuit panel, however, viewed the law differently. Sure, the law was content neutral, but the appellate court held that it was nonetheless unconstitutional. The problem? It broadly prohibited substantial protected speech rather than specifically targeting the evil of improper communications to minors.

For now, that means that Indiana sex offenders can get back on Twitter and Google+, but not on Facebook. So what gives?

CNET explains that Facebook modified its legal terms in 2009 to prohibit sex offenders from using the social network. The Facebook terms explicitly state, "You will not use Facebook if you are a convicted sex offender." (And let's not forget, the Computer Fraud and Abuse Act -- as it's currently written -- allows the feds to prosecute a user who violates a site's terms of service.)

Twitter and Google+, by contrast, have no such ban.

Indiana is left with a couple of options for keeping sex offenders from tweeting: It could head back to the drawing board and create a sex offender social media ban that is "narrowly tailored to serve the state's interest," or it could just pressure social media networks to ban sex offenders. (CNET notes that Facebook adopted its ban under pressure from then-New York Attorney General Andrew Cuomo; the strategy has been known to work.)

If ever there was a case ripe for a social media discussion, it's this one. Let us how you think this will play out on Facebook or Google+, or tweet your predictions to @FindLawLP.

Related Resources:

• John Doe v. Prosecutor, Marion County (Seventh Circuit Court of Appeals)
• Indiana Must Provide Due Process for Sex Offender Registry (FindLaw's Seventh Circuit Blog)
• DOJ Won't Ask for Supreme Court Review of CFAA Hacking Decision (FindLaw's Supreme Court Blog)