How Far Are We Willing To Go To Catch a Predator?

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Since the advent of social media ranging from basic chat rooms to websites dedicated solely to making connections with friends and strangers, the American public has been cautioned against predators online. Parents are told to carefully monitor their children’s activity online and be wary of older cyberpredators posing as peers of their children in an attempt to become close to minors, and occasionally even solicit sexual contact. There has even been a television show entitled To Catch A Predator that chronicles undercover sting operations designed to entrap and arrest online predators by using decoys with the help of a watchdog group called Perverted Justice.

Lawmakers in Indiana decided to legislate additional protection for children online and passed a law that aimed to ban registered sex offenders from using social networking sites that can be accessed by children. The law was upheld in June because the district court judge held that the state does have a strong interest in protecting children, and determined that the statute was not overbroad because the rest of the Internet was available to the registered sex offenders affected by the law. Though the law does not explicitly state which websites are prohibited to sex offenders, court filings have indicated that Facebook, Myspace, Twitter, Google Plus, chat rooms, and instant messaging services would be covered.

As the First Amendment Law Center reported, on January 23, 2013, a federal appeals court ruled that that Indiana law was unconstitutional. A unanimous three-judge panel of the 7th Circuit Court of Appeals justified reversing the lower court’s decision to uphold the law because the law went too far by restricting the free speech of the registered sex-offenders. Ultimately, the Court concluded “that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.”

The Court cited Cohen v. California to show that the government is forbidden to “prescribe the form or content of individual expression,” and also cited Stanley v. Georgia to show that this statute limited a “right to receive information and ideas.” Because the Indiana law was content neutral, under which the government could impose reasonable “time, place, or manner restrictions.” These reasonable restrictions, however, must be narrowly tailored to serve the significant government interest. The Court determined that the statute was not narrowly tailored. Essentially, though a valid goal, “[t]he goal of deterrence does not license the state to restrict far more speech than necessary to target the prospective harm.”

The ACLU, who had been involved in the case from its inception, applauded the Court of Appeals’ decision. “[T]he Court properly recognized that the State cannot do this with a law so broad that it prevents someone convicted of an offense years [ago] from engaging in a host of innocent communications via social media,” stated Ken Falk, the ACLU attorney involved in the case. He added that, “Indiana already has a law that prohibits inappropriate communication with children, and the law in this case served no purpose but to prohibit communication protected by the First Amendment.”

Similar laws have been stuck down by courts in other states, which have led legislators to pass new, narrower laws in response. It is unclear what legislators in Indiana will do when they take their next steps in figuring out how to make a narrow law that would survive intermediate scrutiny, but it is certainly likely that this is not the end of the attempt to pass laws to protect children from cyber-predators. It will be interesting to see how creative legislators will have to be in order to reconcile their desires to block sex offenders from using social media while still being cognizant of their First Amendment rights.

Posted by Catherine A. McCormick on Thu. February 14, 2013 9:27 AM
Categories: Social Media

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