Is banning sex offenders from social networking sites constitutional?

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?

Keyboard image courtesy Flickr user striatic under this Creative Commons License.

12 thoughts on “Is banning sex offenders from social networking sites constitutional?

  1. RWV

    What about an equal protection challenge? That seems to me a more poignant question. First Amendment rights are fundamental. The sex offender has as much right as the next guy to participate in political speeh via the Internet (indeed, he has more reasons to because of his unique position as a persona non grata). Religious expression over the Internet? Doesn't the sex offender retain that right? Suppose it's a Christian-based social networking site for the purpose of proclaiming the Gospel. How can the sex offender be denied this right without running afoul of the 14th/1st Amendment fundamentals? Like so many of the new laws aimed at sex offenders, these social networking prohibitions are theater. They keep people elected My only hope is that the federal bench is receptive to the obvious Constitutional arguments against the laws.

  2. Joe

    In general, the way we have started treating sex offenders is bordering on unconstitutional. Yes, they have committed some of the most heinous crimes people are capable of, yet we continue to restrict where they may live, work, or even which homeless shelters can take them in even AFTER they have served their prison sentences.

    1. carol

      Know why we restrict them so severely?? Once a child molester ALWAYS a child molester…they are notorious for being repeat offenders. Screw with the rights of an innocent child?? and you deserve NO rights!!

      1. Concerned Citizen

        Carol, you obviously don't know the facts and are relying on myth. The recidivism is quite lower than what you have indicated. http://www.corrections.com/news/article/24500-fac… Pay special attention to the section: "Myth: Sex offenders have a 94 percent recidivism rate" This is only one articles available on the subject. I highly suggest that you do your research before making such a stupid comment that makes you look like an angry vigilante.

  3. Honest Opinion

    Joe states, "In general, the way we have started treating sex offenders is bordering on unconstitutional. Yes, they have committed some of the most heinous crimes people are capable of, yet we continue to restrict where they may live, work, or even which homeless shelters can take them in even AFTER they have served their prison sentences."

    The law's interpretation is described in Doe v. Poritz

    * Everyone who is labeled a sex offender has NOT committed the most Heinous crimes people are capable of. A sex offender is a person who has committed any sex offense. Sadly the legislators quest to capture as many sex offenders as they could was definitely was the wrong path. Public notification of everyone listed is the problem here. It was never the intention of the courts! Placing any restrictions on past offenders who do not pose a threat is troublesome.

    The legislators are not being honest or fair. They chose not to follow the laws intent, reasoning or actual purpose. Their "INTENT" is to act as vigilante and appear tough on sex offenders for personal popularity. Their interest is not in protecting their constituents who are unfairly harmed by misguided laws.

    I have listed a few cases and the opinions are noted. I've NEVER heard a legislator express these opinions and you never will.

    See E.B. v. Verniero, supra at 1089; Doe v. Attorney Gen. (No. 2), 425 Mass. 217, 222 (1997). Cf. Opinion of the Justices, supra at 1226 (noting severe consequences that community notification may have). If public availability of information about the plaintiff serves no remedial purpose, that availability is unnecessary to provide protection for those whom the act was designed to protect. See State v. Ward, 123 Wash. 2d 488, 503 (1994) ("Absent evidence [that the offender poses a threat to the community], disclosure would serve no legitimate purpose.

    The New Jersey Supreme Court, in John Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995), upheld the New Jersey statute, although it imposed certain procedural protections under federal and state law.

    My question is, if NJ tier system was devised for protecting tier 1 offenders from any open notification, as they are considered to be free to reestablish their good standing in the community. Why do NJ legislators include ALL sex offenders listed, even tier 1 offenders when crafting their additional restrictions? Isn't this in violation of the NJ law? Why would any, NJ tier 1 offender be subject to restrictions in other states?

  4. Michael Moreno

    I am a father of three girls. I am aware of the risks that my daughters run in their everyday lives. If there is no doubt of the crime committed I do not believe that because of time spent in jail all sins should be forgotten. social networking is a very direct way to reach a target population of individuals who are quite impressionable. and in the same way that a child molester is not allowed to live near a school neither should they be allowed to participate in this type of networking. I know it is a long shot to make the world a safer place but it is a way to take a step forward in what I consider is a good direction. What I am triyng to say is that at one point common sense should overrule law and "constitutionality".

    1. Lynn

      I too am a mother of 3 girls, however child molesters don't have to live next to a school, park etc. to molest. Most of these crimes are done by parents, relatives or friends of the family. EVERYONE should have the right to serve their sentence and then rebuild their life without being hunted. Drugs pose as much if not more risk to our young children, but do you see registries every where with convicted drug dealers names on them? NO! you don't. We have handed over all our ability to reason and discern for ourselves to the government. We are no safer now with all the ridiculous laws on sex offenders then we were before. The re-offense rate for another sexual offense is actually under 7%, way lower than what many would like you to believe.

      1. Lynn

        To continue with my thought…..

        Search the internet, it's not hard to find the actual truth about sex offenders. Look at this report released by the Bureau of Justice: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&am… Click on one of the links below the title to open the PDF file for the report. Look at Table's 22 and 24 which specifically address child molesters and the re-offense rate for them within 3 years of release. Come on people, lets use our heads. Stop letting the chicken little's running around yelling "the sky is falling" tell us what to think and do. Politicians are using your fear to gain votes and popularity. And they are passing legislation that violates the constitutional rights of people who are very easy to pick on.

  5. ronie

    It is not a good idea to suspend the constitution in some cases just because the constitution does not get up and do a little dance for your common sense.

    It was done in the Salem which trials and later for persons that were accused of being mentally retarded by someone else, without basis in fact.

    Africans were given a status that didn't allow them any rights because of skin color.

    Japanese Americans were interred during WWII just because someone's sense said that they were high risk to the country.

    Somewhere near 90% of sex crimes never get convictions or are never even reported. So many of your neighbors may have at some point commited a sex crime and just were never reported or never convicted.

    If the sex offender registry was narrowed to only a few dangerous individuals

    then these dangerous persons would be much easier to keep track of and much less likely to be hidden in a registry that is too broad.

  6. freedomwriter

    We strive to protect children with these laws yet some of those on the "sex offender" list are children themselves. There are hundreds of thousands adults on the "sex offender" lists that never commited a crime against children. Some have commited a single misdemeanor involving neither a child or minor. 95% of "sex "offenders" as defined by todays law are not even dangerous at all. These people can no longer be affective parents to their own children because of the restrictions , harrasement, and stigma. The children themselves are sometimes harrased! So in an effort to save children we have ruined the lives of tens of thousands of more children. Real smart thinking.

    Is that also not tragic? Certainly not murderous child molesting rapist tragic but tragic none the less. If you think it isnt tragic take the time to talk to one of their kids. There is tens of thousands of them to choose from all over this country.

    The fact is that kids are more often hurt by people they know and not strangers. The media reports and hypes the "stranger danger" cases because they are sensational compared to uncle Chester touching little Sally. There is no sensationalism in that. So chew on these facts…

    A 2003 Department of Justice study found that only 7% of incarcerated child sex offenders in prison in 1997 were there for crimes where the victim and assailant were strangers.

    Another study found that no more than 10% of child molestations are committed by strangers to the victims.

    Additionally as defendants point out, a 1997 report from the Department of Justice indicated that only 3% of sexual assaults against children under 12 years old were perpetrated by strangers as were only 11% of sexual assaults against children 13 to 17 years old. Likewise a 2000 report from the same agency indicated that as to victims 5 years old or younger, only 3.1% of the crimes were committed by strangers and as to children age 6-11, only 4.7%.

    The implication of these and countless other studies is that laws designed to protect our children, to be effective, should focus on preventing sex offenders from harming children whom they know, not fixated on preventing the rare attacks by strangers.

    Those words come straight from a Kentucky district court judge. The numbers straight fomr our own gevernments DOJ.

    If you want to go look it up.

    COMMONWEALTH OF KENTUCKY

    KENTON DISTRICT COURT

    FOURTH DIVISION

    CASE Numbers, 07-M-00604, 06-M-5879

    06-M-5885, 06-M-5932, 06-M-5915, 06-M-5920,

    06-M-6814, 06-M-6031, 06-M-5834,

    06-M-5930, and 06-M-5866

  7. freedomwriter

    oops forgot one….

    A study by a California newspaper of nearly five hundred released sex offenders who legally resided near schools and day care facilities found that only one was rearrested during the one year period of the study, and that was on a charge of parole violation and not for another sexual assault.10 A Minnesota Department of Corrections study found that only two recidivist acts of child sexual assault were committed in parks on unknown victims and in those two instances the assaults occurred several miles away from the offenders’ homes. This fact resulted in the Department concluding that residency restrictions would not be effective in deterring the offender who wanted to harm again.

    Time to stop wasting millions in money and resources on the non dangerous and focus on those that really deserve it.

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