Social media prohibition held unconstitutional

By Andrew J. Contiguglia

The 7th Circuit court of appeals Wednesday declared an outright ban on social media usage by convicted sex offenders to be a violation of the First Amendment. At the crux of the arguments is the public’s right to be protected from convicted sex offenders and the offender’s right to send and receive information – a core, fundamental concept under the First Amendment. The 7th Circuit recognized this conflict, but ruled that an outright ban on such information, even to sex offenders, violates the First Amendment. The court stated,

The state initially asserts an interest in “protecting public safety, and specifically in protecting minors from harmful online communications.” Indiana is certainly justified in shielding its children from improper sexual communication. Doe agrees, but argues the state burdens substantially more speech than necessary to serve the intended interest. Indiana naturally counters that the law’s breadth is necessary to achieve its goal.

The Sate of Indiana agreed that the goal of its statute was to curtail communication between convicted sex offenders and minors. However, the Court did not believe the statute was tailored in a fashion to limit such conduct, but instead cast a broader net, restricting speech that did not meet the ends of the Indiana law.

Turning to the Indiana statute, the state agrees there is nothing dangerous about Doe’s use of social media as long as he does not improperly communicate with minors. Further, there is no disagreement that illicit communication comprises a minuscule subset of the universe of social network activity. As such, the Indiana law targets substantially more activity than the evil it seeks to redress. Even the district court agreed with this sentiment, stating the law “captures considerable conduct that has nothing to do” with minors. Indiana prevents Doe from using social networking sites for fear that he might, subsequent to logging on to the website or program, engage in activity that Indiana is entitled to prevent.

I have followed cases like this one for quite sometime. The general consensus among the appeals courts is any form of “blanket prohibition” on Internet, or social media usage, will be a violation of the First Amendment. This issue has not directly been decided by the US Supreme Court, but the consensus among the circuit courts of appeal, and many state supreme courts, indicates a blanket prohibition will likely be overturned.

Here’s the opinion.