Children’s advocates, free speech supporters clash over sex offenders’ use of social media

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

A pending case in Indiana, which will grapple with issues already considered in federal courts in Nebraska and Louisiana, pits an intriguing clash between the interests in protecting children from sexual predators and the safeguarding of free speech. The case concerns a First Amendment challenge by a convicted, but now released, sex offender, to a law that prohibits convicted sex offenders from using instant messaging services, joining chat rooms or social networks such as Facebook and LinkedIn.

In Nebraska, a federal court struck down large parts of a similar bill, holding that it unduly violated the sex offenders’ First Amendment rights. In Louisiana, another federal judge tossed such a bill, holding that it “unreasonably restricts many ordinary activities that have become important to everyday life.” However, just last month, the Louisiana governor signed into law a revised version of the bill, which narrows its application to sites that are primarily used for socializing.

In the Indiana case, the plaintiff was convicted on two counts of child exploitation, served three years in prison and was released. The ACLU, who is bringing the challenge, argues that the law denies the plaintiff a number of essential freedoms. They argue he can’t comment on news stories online or send questions to television debates because it requires a Facebook account to do so. Similarly, he can’t contact his family from out of state using social media, supervise his son’s internet usage or set up a business profile on LinkedIn. Given that social media use is so prevalent in today’s world and the ban hits people who are no longer in prison or on probation, the ACLU argues it is a violation of the First Amendment.

So there is an intriguing clash in the case between two very important interests, namely protecting children from exploitation by sexual predators online and protecting the right to free speech in the digital age. In response to the arguments of the ACLU, advocates of these restrictions argue that all sexual predators use social media now. Social media enables sexual predators and pedophiles to have unsupervised interactions with children which they can easily use to take advantage of those children, while numerous other forms of communication, which don’t pose the same threat of harm like the telephone, are still available to them. Further, supporters argue that free speech is not really restricted by denying use of social media because sex offenders can still enjoy all of the freedoms of the First Amendment. If they want to congregate, debate, demonstrate etc., they still can.

One thing that makes these cases very interesting is that there is no immediately apparent solution. Pedophiles’ use of chat rooms and social networking sites is a big problem in our society, and one which is obviously worthy of the legislature’s attention. However, use of social media today is almost ubiquitous and a blanket ban on registered sex offenders may represent too sweeping a restriction on the rights of those persons. One thing that is for sure, though, is the issue is not going away any time soon.

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