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Constitutional Law — sex offenders — First Amendment

By: WISCONSIN LAW JOURNAL STAFF//January 24, 2013//

Constitutional Law — sex offenders — First Amendment

By: WISCONSIN LAW JOURNAL STAFF//January 24, 2013//

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United States Court of Appeals For the Seventh Circuit

Criminal

Constitutional Law — sex offenders — First Amendment

A statute prohibiting registered sex offenders using social networking websites, instant messaging services, and chat programs, violates the First Amendment.

“The district court also suggested the law was narrowly tailored to serve purposes different from the existing solicitation and communication laws. It stated the existing laws ‘aim[] to punish those who have already committed the crime of solicitation,’ while the ‘challenged statute, by contrast, aims to prevent and deter the sexual exploitation of minors by barring certain sexual offenders from entering a virtual world where they have access to minors’ (emphases in original). The state continues this argument on appeal. The immediate problem with this suggestion is that all criminal laws generally ‘punish’ those who have ‘already committed’ a crime. The punishment is what ‘prevent[s] and deter[s]’ undesirable behavior. Thus, characterizing the new statute as preventative and the existing statutes as reactive is questionable. The legislature attached criminal penalties to solicitations in order to prevent conduct in the same way decade-long sentences are promulgated to deter repeat drug offenses. Perhaps the state suggests that prohibiting social networking deprives would-be solicitors the opportunity to send the solicitation in the first place. But if they are willing to break the existing anti-solicitation law, why would the social networking law provide any more deterrence? By breaking two laws, the sex offender will face increased sentences; however, the state can avoid First Amendment pitfalls by just increasing the sentences for solicitation— indeed, those laws already have enhanced penalties if the defendant uses a computer network. See Ind. Code §§ 35-42-4-6(b)(3); 35-42-4-13(c).”

Reversed and Remanded.

12-2512 Doe v. Prosecutor, Marion County, Indiana

Appeal from the United States District Court for the Southern District of Indiana, Pratt, J., Flaum, J.

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