Do registered sex offenders have a First Amendment right to access Facebook? Yes, according to a federal appeals court. In January 2013, the Seventh Circuit Court of Appeals struck down an Indiana law that barred most registered sex offenders from using social networking websites, instant messaging services, and chat programs. The court ruled that the law unconstitutionally limited offenders’ free speech rights. (Doe v. Prosecutor, Marion County Indiana, 2013 WL 238735 (Jan. 23, 2013).)
States have great latitude in the post-release restrictions and duties they can impose on convicted sex offenders. People convicted of certain sex offenses must register on public data bases in all 50 states. (For more on sex offender registration laws, see State Sex Offender Registration.) And, sex offenders may be involuntarily committed after their release from prison. (For more information on civil commitment of sex offenders, see State Civil Commitment for Sex Offenders.) But, restrictions on freedom of speech call for an especially close look by the courts.
Laws that limit speech are subject to stricter court scrutiny (in other words, more stringent examination) than other laws, to be sure that they do not violate the First Amendment to the Constitution.
In striking down the Indiana law, the Seventh Circuit found that it violated the offender’s First Amendment speech rights because it interfered with his “right to receive information and ideas.” Freedom of speech includes the right to hear or read freely, as well as to speak freely.
But, this doesn’t mean that all laws limiting communications are unconstitutional. Several factorsaffect whether or not a law restricting speech will survive First Amendment scrutiny.
Under the First Amendment, “content neutral” laws do not address the subject matter of speech and may be constitutional in certain circumstances. (A different and even stricter standard would be applied if a law limited speech based on its content.) For example, a city that outlaws the Ku Klux Klan from marching through town because the KKK’s message is offensive violates the First Amendment. However, a city that requires the KKK to get a parade permit before marching does not violate the First Amendment. The parade ordinance is a content-neutral law, in that it does not address the subject matter of the speech but only the time, place, or manner of its expression.
The Indiana law was “content neutral” on its face insofar as it didn’t try to block a message the government disliked. The law barred all messages to or from sex offenders on the sites. But that’s just the start of a First Amendment analysis.
The government can impose content-neutral limitations on the time, place, or manner of expression in certain ways and to meet significant state interests. In the KKK parade permit example, the city would be restricting time, place, or manner of the speech to promote orderly traffic flow and public safety. In another example, it is not a violation of the First Amendment for a state to require that abortion protestors stay at least 100 feet from a clinic so as not to block access to the facility. This is a restriction on place and manner but is not based on the content of the speech—the protestors may shout the same slogans from 100 feet away. But even a content-neutral time, place, or manner restriction may not be upheld if there are alternative means of combating the problem targeted; that is, if the state has other laws that address the same problem and that do not infringe on First Amendment rights, the law that restricts speech may be found unconstitutional.
The state of Indiana had other laws prohibiting inappropriate contact with minors, but Indiana argued that its overriding interest in protecting children justified adding the social networking site restriction to its sex offender laws. The Seventh Circuit disagreed.
Where a state has other laws that advance the same goal as the speech-restricting law, the law will be stricken. In rejecting the Indiana law, the Seventh Circuit relied on a Supreme Court decision striking down a state law that prohibited leafleting so as to limit litter. The Supreme Court found that the law violated the First Amendment because the state also had laws that made littering a crime. The Court noted that the act of handing out paper (leafleting) was not the problem—dropping the leaflets was the problem. So, the state could constitutionally address the problem it targeted by the anti-leafleting law if it just enforced its littering laws.
In the Indiana case, the court found that because the state’s criminal prohibition of inappropriate contact with minors already promoted the state’s significant interest in protecting children, the state couldn’t justify its broad interference with sex offenders’ rights to access social networking sites.
Acknowledging both the significance of the state’s interest in protecting children and the sex offenders’ First Amendment right to freedom of expression, the Seventh Circuit struck down the law after applying the analysis described above.
The Seventh Circuit agreed that the Indiana law was content neutral but found it violated the First Amendment because:
As to the last point, the court disagreed with the state’s argument that the statutes outlawing inappropriate contact with minors were intended to punish the sex offender, while the social network bar was intended to prevent and deter such contact. The court pointed out that the criminal laws barring and punishing inappropriate contact also had a deterrent effect. And the court added that the state is free to increase the penalty for inappropriate contact with a child if it is concerned that the existing law was not having the desired deterrent effect.
Emphasizing that it was not limiting a state’s latitude to impose restrictions on sex offenders who have been released from prison under supervision, the court said that a state could include a social networking site restriction on a particular offender as a term of his or her release.
States Retain Great Latitude in Restricting Sex Offender Conduct
The Supreme Court has upheld state laws under which sex offenders may face civil commitment after the end of their prison terms. Although these laws impose far greater restrictions on offenders than the social network access bans, the Court has upheld them because they require pre-commitment hearings and evidence from the state that the offender is likely to offend again. The Indiana law barring offenders from accessing social networking sites offered no such individualized examination of threat of harm or opportunity to challenge the application of the law to the particular offender.
In February 2012, a district court in Louisiana blocked enforcement of a law that banned registered sex offenders from Facebook and other social networking sites because the law violated the First Amendment. In its ruling, the court described the Louisiana law as a “near total ban on Internet access” that “unreasonably restricts many ordinary activities that have become important to everyday life in today’s world.” At a hearing in the case, the judge noted that the Louisiana law even seemed to bar sex offenders from accessing the federal court’s own website. In May 2012, Louisiana enacted a new law that requires registered sex offenders to post their criminal status on their profile pages on social networking sites. (H.B. 620 at the Louisiana State Legislature webpage, www.legis.la.gov.)
In October 2012, a district court judge in Nebraska struck down parts of that state’s law restricting social networking site access by sex offenders based on the First Amendment. (Neb. Rev. Stat. § 28.322.05.)
There is no overstating the importance of the government’s interest in protecting children from sexual predators. It is a testament to the monumental stature of freedom of expression under the First Amendment that courts look very hard at broad restrictions on the speech rights of even convicted sex offenders. However, states have great latitude in imposing many other restrictions on the conduct of convicted sex offenders after they have completed their prison terms. But, for now, Facebook and other social networking sites are open to them.