Social Media Laws for Sex Offenders—can they withstand constitutional scrutiny?
Imagine reading “convicted sex offender” on an individual’s Facebook or LinkedIn page. Such social media websites may need to add a new field to users’ profiles because on August 1, Louisiana will become the first state to require convicted sex offenders to openly list their status on social networking pages.
The Louisiana law was signed into law in May 2012 and mandates that sex offenders and child predators “shall include in his profile for the networking website an indication that he is a sex offender or child predator and shall include notice of the crime for which he was convicted, the jurisdiction of conviction, a description of his physical characteristics, and his residential address.”
The murder of a Louisiana boy sparked the introduction of this bill by State Representative Jeff Thompson. The murderer deceived the boy by pretending to be a young woman online. In drafting the law, Thompson consulted with prosecutors, the Louisiana Attorney General, and members of a local Internet Crimes Against Children task force. Individuals who violate this law will face up to ten years of imprisonment with hard labor and no parole, and up to a $1,000 fine. The maximum sentence for a second conviction is 20 years of imprisonment with hard labor and no parole, and a $3,000 fine.
Thompson said the new law “provides the same notice to persons in whose home you are injecting yourself via the Internet.” He noted the common use of social media as a 24/7 opportunity for individuals to interact with children and teenagers online. The law expands on current state notification laws that require persons convicted of crimes such as rape, aggravated incest, and pornography with juveniles to register their names, addresses, crimes, and photographs to local police and nearby schools and parks. This registration process currently involves direct mail and public notice in the local newspaper.
The bill does not detail which websites the law will apply to, but contains a lengthy definition of a social networking website and reads in part: “A 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 networking website.”
Several social media sites such as Match.com and Facebook already forbid sex offenders from using their sites in their Terms of Service and Statements of Rights and Responsibilities. If Facebook verifies that a user is a sex offender, they immediately disable the user’s account, then remove the profile and all information associated with the account. But Thompson said the legislation will cover websites who do not police themselves, and targets sex offenders who ignore terms of social websites.
Although a previous Louisiana law barring sex offenders from social media was found unconstitutional, Representative Thompson and Governor Bobby Jindal believe this law will withstand constitutional scrutiny because it builds on existing state law. The previous law prohibited registered sex offenders convicted in crimes involving children and prohibited the “using or accessing of social networking websites, chat rooms, and peer-to-peer networks.”
Chief Justice Brian Jackson of the United States Middle District Court of Louisiana struck down the previous law as it created “a near total ban on Internet access” and “imposed severe and unwarranted restraints on constitutionally protected speech.” Chief Justice Jackson noted the definition of “chat room” in the law was broad enough that the court system’s own website could fall under the ban. But Chief Justice Jackson also wrote “more focused restrictions that are narrowly tailored to address the specific conduct sought to be proscribed should be pursued.”
Several other states have enacted laws that limit social media use by sex offenders, many of which require sex offenders to register their e-mail accounts and social network profile names with authorities. A few states, including Illinois and Texas, ban sex offenders from social network sites as a condition of parole. But the American Civil Liberties Union is challenging these laws as a free speech issue on a state-by-state basis, alleging these laws violate the constitutional right to free speech.
A 2008 North Carolina law bars registered sex offenders from using social media networking sites such as Facebook and MySpace. The law prohibits registered sex offenders to use commercial social networking websites “where the sex offender knows that the site permits minor children to become members, or to create or maintain personal web pages on the commercial social networking website.”
In 2011, two convicted sex offenders caught maintaining accounts on Facebook and MySpace unsuccessfully challenged the North Carolina law. The two men – Christian Johnson and Gerard Packingham – claimed the law prohibited “any and all speech, however innocent,” and Packingham’s lawyer alleged the law kept her client from promoting his business on Facebook. But as North Carolina Lieutenant Governor Walter Dalton (who sponsored the law as state Senator) emphasized, registered sex offenders are still permitted to communicate in various other ways and such a statute is doing what it intended to do.
