But the adoption (or not) of Jessica’s Law actually presents relatively uncomplicated issues. In a spectacular collision of two areas that legislators love to want to regulate but don’t really know how, many states have begun trying to limit SOs’ use of the internet. A few such laws have already been rightly ruled unconstitutional by federal courts, some others are severely misguided, and a handful are probably good ideas.

Complete Bans Infringe First Amendment Rights

The most restrictive laws have sought to ban SOs outright from using social networking sites, chat rooms, or instant messaging services that allow access to minors. This past January, the federal 7th Circuit Court of Appeals ruled that such a law from Indiana was unconstitutional on First Amendment grounds, and a U.S. District Court invalidated a similar Louisiana law in February 2012. Several other states such as New Jersey have introduced similar social media bans, but they are languishing or have been abandoned following the 7th Circuit decision.

According to the principles American constitutional jurisprudence, any law restricting a fundamental right (which includes First Amendment rights) must both serve a compelling state interest and be narrowly tailored to meeting that interest. Of course, nobody argues whether the state has a compelling interest in preventing sexual abuse of children; it is in the narrowly-tailoring where these laws have failed. By banning SOs from using social networking sites at all, they prohibit a wide range of speech- and expression-related conduct that has nothing to do with the exploitation of children. Lawyers for Indiana argued that the complete bans were necessary because although the state already had a law prohibiting internet solicitation of a minor, police needed something to catch SOs with before solicitation could even occur. This may be a worthy goal, but is not enough to justify the inclusion of non-targeted conduct within the ban. The court also seemed concerned about the practical efficacy of this preemptive enforcement, which weakens the idea of the law actually serving a compelling interest.

 

More Limited Social Networking Restrictions

Many commenters and elected officials in Indiana and Louisiana have criticized the decisions, despite the fact that they practically invite the legislatures to try again with some modifications to narrow the scope of the bans. It will be interesting to see how states attempt to nuance these laws to survive constitutional review; perhaps the best example of one that likely would survive is New Mexico’s HB 48.

Instead of banning SOs from social networking or chat sites completely, New this bill would make it a crime to “knowingly and intentionally communicat[e] with a person that the sex offender knows is under sixteen.” This minimizes the scope of the non-targeted infringement of speech, while still providing law enforcement a tool for catching potential re-offenders—it gives them a crime to charge a SO with before rising to the level of solicitation. The law could be used to catch offenders who are fishing for or “grooming” their potential victims before any sexual conduct or talk takes place, by criminalizing communications that otherwise appear facially innocent. It also wouldn’t raise as many enforceability questions as the Indiana law, due to the fact that it requires a the offender to make specific action towards a minor.

In addition, New Mexico’s proposed law would only apply to SOs whose victims were under the age of sixteen and whose initial crimes were facilitated via the internet. Interestingly, the 7th Circuit’s decision notes in the legislative background that Indiana’s law “did not differentiate based on age of victim, the manner in which the crime was committed, or the time since the predicate offense,” and then never returns to these ideas again, but we can probably presume that making such differentiations would help a law pass constitutional muster.  The New Mexico bill also contains a clause exempting communications with one’s own children (people often forget that many SOs have children who were not the victims of their crimes) and a so-called “Romeo and Juliet clause,” exempting those considered SOs for having a relationship with someone only a couple years younger than them. Although I have not yet come across substantially similar proposals in other states, if passed, it should probably become the model sex-offender-internet-restriction law.

Other Regulatory Approaches to SOs Online

Add Social Networking Info to Sex Offender Registries

Rather than trying to regulate the conduct of SOs on the internet, more states are trying to increase awareness and tracking of SOs’ internet use. The first general category of these laws is fairly uncontroversial–requirements for SOs to provide SO registries with their various internet handles, usernames, e-mail addresses, etc. Rather than discussing the merits of the registries themselves (which I do here), let’s assume for this argument that they are generally good ideas, and we want to know who and where our SOs are. The registries already require the names, aliases, phone numbers, and places of residence and employment of offenders to be recorded and updated frequently; it makes sense that our registries would be modernized to include new types of electronic “aliases” and “places.” Many states already require this kind of information, but seek to make the laws more current with technological trends and developments. For example, Florida’s S. 1114 broadens its requirement for SOs to provide their “Instant Message Name” to all “internet identifiers,” which are defined as “all electronic mail, chat, instant messenger, social networking, or similar name [sic] used for internet communication;” Alabama would add disclosure of internet service providers.

In a surprising show of judgment and restraint, none of these laws or proposed bills require SOs’ “internet identifiers” to be displayed on the registry that is available to the public. In fact, many such as New Mexico specify that this information is for law enforcement use only, and a Missouri bill takes a middle approach somewhat reminiscent of Colorado’s medical marijuana registry—online identifiers would not be available in the SO’s general registry profile, but “shall only be available to a member of the public by a search using the specific online identifier to determine if a match exists with a registered offender.” This theoretically could assist people in protecting themselves or their children if they are contacted by an unknown person online; given that over ninety percent of sex offenses against minor are committed by family members or already-trusted friends, the actual protectoral value is probably quite low. However, since these laws do not really implicate any serious constitutional rights questions, they are probably here to stay, and will probably do little good or harm either way.

Add Sex Offender Info to Social Networking Profiles

In perhaps the least sensible approach—although more constitutional than the complete bans—some states want to require SOs to advertise their SO statues on social networking profiles. Louisiana has already adopted such a law in response to their complete ban being overturned, and Arizona, New Jersey, and Texas are currently considering this requirement. Generally, these laws cover all internet sites that facilitate communication between users and allow users to create profiles displaying personal information, with three exemptions as constitutionality safeguards: news websites, governmental entities’ sites, and sites that primarily facilitate commercial transactions. So a SO would not have to disclose his status on his FoxNews.com account or eBay profile, for example, but would have to post it on any Facebook, Twitter, Google+, or LinkedIn account.

This presents a wide array of problems. First, any SOs displaying their status on these profiles will undoubtedly be subject to a flurry of harassment and threats. If the level of harassment is severe enough to compel SOs away from these sites, there could be some argument that the disclosure requirement is effectively a ban for practical purposes. Three of the four laws, excepting Arizona’s, require listing not just one’s SO designation, but the specific crime, convicting jurisdiction, a physical description, and residential address, which could lead to increased in-person harassment or episodes of vigilante justice (see my previous piece for some examples of this gone horribly wrong). And over-notification can have unintended consequences for others; one SO who testified before the Texas House Committee on Criminal Jurisprudence noted that his children had been kicked out of their karate class when someone discovered their father on the SO registry. Any family members or friends of an SO might feel they have to sever any social-network connections to the SO to avoid being ostracized by association. The result is either unintended victims of the notification, or even more alienation and isolation of SOs.

These disclosure requirements also undermine the reintegration process by limiting employment opportunities for SOs. Many websites for job-seekers, such as LinkedIn, Jobster, and Monster.com, would be covered by these laws, not to mention the fact that many employers also screen the social networking profiles of potential employees (various surveys indicate from 37% to 56% of employers). It can certainly be argued that this would a useful tool for employers who wish to screen out SOs, but criminal background checks already exist for that very reason, and would remain much more reliable because they are not dependent on the SO’s compliance with the law. If an employer is concerned about the cost of an official background check—which, depending on the state, usually costs $10-20 and is often passed on to the applicant—it is just as easy to search for a name on the online sex offender registry as it is on Facebook (and probably actually easier to screen out false matches). Furthermore, nearly all positions working with children require an official background check anyway, and thus the law is the most superfluous in the area it is primarily seeks to address.

Legislatures will undoubtedly continue to tinker with laws to protect children on the internet, and as soon as another internet predator makes national media, there will once again be a flurry of “get tough” bills. But even in the aftermath of tragedies, legislators (and citizens) need to remember that stricter, one-size-fits-all laws are not always better, especially when it comes to constitutionally protected conduct such as speech. If they want to restrict the conduct of sex offenders on the internet, they should consider at least one of two limitations: (1) the class of sex offenders to which it applies, such as those who used the internet in a prior crime, with minor victims; or (2) the type of conduct restricted, by specifically prohibiting interacting with minors via the internet rather than complete bans from certain sites. This way they can still target the conduct they seek to prevent, while preventing undue infringements of First Amendment rights, in a narrowly-tailored fashion.

 

 

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