Mashable and others are reporting on a law that the governor of Illinois signed earlier this week, banning use of social networking sites by convicted sex offenders. The big criticism of that law seems to be that it may be unconstitutional. That question is worth thinking about.
The most likely constitutional challenge will be that the law is too broad. For a law to prohibit certain speech and not run afoul of the First Amendment, it must be narrowly tailored to serve a compelling government interest. Clearly there is a compelling government interest in protecting children and other victims of sex crimes from perpetrators. So the real analysis comes from examining whether this restriction on the use of social networking sites is narrowly tailored to serve that purpose.
What the law says
Let’s back up and take a look at what the new law actually says. In short, it requires any sex offender that is on parole, supervised release, probation, conditional release or court supervision to “refrain from accessing or using a social networking website.” Note that the restriction is not a lifetime ban, but just a restriction to be in effect during the sentence.
There are a number of terms to unpack.
There is a prohibition on “accessing” and “using.” This is kind of redundant, because the statute defines “access” as “to use, instruct, communicate with, store data in, retrieve or intercept data from, or otherwise utilize any services of a computer.” (The redundant part comes from the fact that to “use” is part of the definition of “access”.)
The most important definition for our discussion is that of a “social networking website”:
“Social networking website” means an Internet website containing profile web pages of the members of the website that include the names or nicknames of such members, photographs placed on the profile web pages by such members, or any other personal or personally identifying information about such members and links to other profile web pages on social networking websites of friends or associates of such members that can be accessed by other members or visitors to the website. A social networking website provides members of or visitors to such website the ability to leave messages or comments on the profile web page that are visible to all or some visitors to the profile web page and may also include a form of electronic mail for members of the social networking website.
This is a tortured definition plagued by a couple of runon sentences, but in essence, a social networking website, as defined under Illinois law, is any site that has:
- profile pages that contain
- identifying information such as names, usernames or photographs, and which are
- linked to other profile pages of “friends or associates” that can be
- accessed by other members or visitors to the website, and
- provides the ability to leave messages or comments on the profile visible to others
In a rather strange style for legislative writing, the definition says that a social networking site “may also include” direct messaging. That’s weird to say in a statute — does it have to include direct messaging to be considered a social networking site? One could argue either way. So that part of the definition does nothing to assist.
How one can run afoul of the law
By merely accessing a social networking site, a sex offender violates this new law. He or she doesn’t have to actually use any of the social networking functionality, all that is necessary is to merely retrieve data from the computer on which the site is stored. Clearly it would be verboten to use MySpace and Facebook. But also off limits would be LinkedIn and Focus. Flickr? YouTube? No way, even if the offender is just going there to passively view content for completely benign purposes.
The constitutional problem
Remember, the law has to be narrowly tailored to meet the compelling state interest. That means that if there is some less restrictive alternative than the law as enacted to fix the problem, the law is too broad and therefore unconstitutional. It would certainly seem that there is something less restrictive than a prohibition on merely visiting a website with social media functionality. A good start would be more aggressively targeting the actual online conduct that might put people at risk — actual online interaction through social media.
But it is far from clear. The Seventh Circuit (which is the federal appellate court that would hear a constitutional challenge to an Illinois law) has held that a convicted sex offender can lawfully be prohibited from visiting a city park. See Doe v. City of Lafayette, 377 F.3d 757 (7th. Cir. 2004). In a city park there is plenty of conduct one can undertake which is not unlawful or does not threaten others. And the court held that restriction was not unconstitutional. There is plenty of conduct one can engage in on a “social networking site” as defined by the statute that is not harmful as well.
Is the comparison between a city park and a social networking site justified?