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Sex Offenders Battle States over Access to Social Networking Sites

Do convicted sex offenders have a First Amendment right to use Facebook and other social networking sites?

A federal judge in Indiana was confronted with that question this week when a group of registered sex offenders challenged the constitutionality of an Indiana law, the Associated Press reports:

In a one-hour hearing at U.S. District Court in Indianapolis, Judge Tanya Walton Pratt questioned attorneys about convicted sex offenders?ÇÖ civil rights and whether the state law is outdated in the age of Facebook, LinkedIn and dozens of other social networking sites.

ACLU attorney Ken Falk argued that even though the 2008 law is only intended to protect children from online sexual predators, it also prevents sex offenders from using social media for political, business and religious activity such as using Facebook to follow the pope or comment on newspaper websites, posting a profile on LinkedIn or following presidential candidates on Twitter.

Indiana is defending its law as sufficiently narrow to be constitutional, according to the report:

Indiana Deputy Attorney General David Arthur argued that the 2008 ban is limited only to social networking sites that allow access by children, and that Facebook, Twitter and similar sites aren?ÇÖt the only forms of communication.

?Ç£We still have television. We still have radios. And believe it or not, people still talk face-to-face,?Ç¥ he said. Arthur also said the ban doesn?ÇÖt apply to email or Internet message boards.

According to the report, federal judges have barred similar bans in Nebraska and Louisiana. Similar restrictions remain in effect in New York, Illinois and North Carolina.

In February, U.S. District Judge Brian Jackson found that Louisiana?ÇÖs law was overly broad and ?Ç£unreasonably restricts many ordinary activities that have become important to everyday life.?Ç¥?á The opinion is available here via the Wall Street Journal Law Blog.

Earlier this month, Louisiana lawmakers passed a new law that more narrowly defines which sites are prohibited to sex offenders.?á News and government sites, email services and online shopping are not prohibited under the new law, nor are photo-sharing and instant-messaging systems.?á The measure takes effect Aug. 1.

In Nebraska, a federal judge in 2009 blocked part of a law that included a social networking ban, according to the Associated Press report.?á A second legal challenge by an Omaha-area sex offender is set for trial in July.

For a more in-depth discussion of the constitutionality of banning sex offenders from social networking sites, see this note published in the Duke Law Journal.

David Bell is a partner in the Dallas, TX office of the law firm of Haynes and Boone, LLP. He is the chair of the firmΓÇÖs Social Media Practice. He may be reached at david.bell@haynesboone.com or 214.651.5248. Follow David on Twitter or add him to your LinkedIn network.

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June 2012