There’s a proposal being floated in California’s legislature that would make it a crime for a registered sex offender to use Facebook, Myspace, or any other “social networking” site.
If this becomes law… should it? Is it even constitutional? One commentator says it would be violative of the First Amendment:
I’m not persuaded that social networking sites are “the new mail,” to the extent that they should be treated as the mail for the purposes of analyzing whether such a ban would be overbroad.
On the other hand, it seems that there are more and more restrictions being heaped on registered sex offenders, a class that is unlikely to garner any sympathy or defenders to speak out against these trends.
So… I dunno. Perhaps some debate might clarify my thoughts.
You can restrict all kinds of rights, provided you do so as part of a sentence handed down by a fair trial. Convicted felons generally face a lifetime gun ownership ban - that isn’t a constitutional question regarding the Second Amendment, regardless of what we may think of it as a policy.
For better or worse, courts may impose restrictions on a person’s right to speech or assemble - this is fairly routine. So I can’t see that this poses any kind of First Amendment issue, since it is a restriction handed down after conviction.
Well, there are a few questions here, right? First - does posting to Facebook, Myspace, etc constitute speech in the First Amendment context? I think that it would be hard to argue that it does not. I imagine that you might make an argument that certain, limited activites on facebook are non-speech conduct - games, poking, and so on. But status messages, wall posts and so on are pretty clearly speech on their face.
So - if we’re to ban speech by sex offenders, even in this limited context, my recollection is that the ban must both advance a compelling government interest and be narrowly tailored towards that end. It’s the strict-scrutiny analysis, and I don’t think this law, as described, could meet that standard. The government’s interest here - in preventing sex crimes - would probably pass the “compelling” prong, but this law is far too broad. It reaches conduct - political organizing on Facebook, for example - that goes far, far beyond the scope of the government’s compelling interest here. And the courts are traditionally very, very protective of political speech.
That said, a much narrower law might work - for example, a statute banning convicted sex offenders from all contact with children might be amended to include any direct personal correspondence via email, letters, or any website - that’s a lot closer to the government interest, much narrower, and wouldn’t preclude things like political activism on Facebook.
The fact that sex offenders would have other avenues of speech available to them is irrelevant, in the first amendment analysis. The burden is always on the government to establish that it can lawfully deny a given form of speech to a citizen - not the other way around.
The First Amendment speech rights are a little different, though. They’re at the core of what makes the Republic work - you can’t have free and fair elections without unfettered speech, and so the courts have been very leer of curtailing those rights since the 1940s.
Well yes, but with fundamental rights it needs to be closely tailored to the need, and take the least restrictive path consistent with the goal. It’s accepted that First Amendment rights can be restricted on convicted felons - computer hackers being denied internet access, convicted child abusers not being allowed freedom of association with children etc. The question here is whether a blanket ban on social networking cites is narrowly tailored enough.
I think it probably is, as some pretty dramatic restrictions are allowed through. I have no illusions however it will do anything to reduce crime and is just there to make people feel good.
Mr. Moto is right… Those convicted of crimes who are placed on any type of probation or parole give up many constitutionally protected rights, i.e., protection against search and seizure, lawful assembly/association, right to bear arms, etc…
In the jurisdiction where I practice, it is routine for any person convicted of possession of child pornography, or attempted indecent liberties with a child by means of a computer, to not have any access to a computer at all (let alone accessing social networking sites) during the term of his supervised probation.
The argument being, “we could put you in prison with no access to a computer for 20 years, but we are only making you serve 5… if you want to not serve the remaining 15, no computers, no unsupervised contact with minors, etc…”
Someday historians are going to look back on these years and note that the hysteria over sex offenders caused far more damage to civil society, and the children who spent their formative years in this environment, than sex offenders did. And no one will be able to do anything but nod in sad agreement.
This. Absolutely, while you’re on parole, you can be placed under onerous restrictions indeed. (Though even those aren’t unlimited - a court or parole officer that tried to keep a parolee from going to political rallies near his home would have problems.) But the question here is whether or not sex offenders could be banned from engaging in speech on social-networking sites after completing their probation/parole.
If it is part of their sentence, imposed by the court, they can be. After all, conviction entails many penalties - not just incarceration. Some of these penalties are lifetime ones, as I have pointed out.
Indeed, many states bar convicted felons from voting at all, for life. And while the wisdom of this policy can certainly be debated, I don’t think there is any question that it is constitutional. See the 14th Amendment, sections 1 and 2.
Good point on both areas. The closer equivalents to “common carrier” status IMO are the ISPs themselves, not the SN sites. However, one wonders if the ban is simply on the individual accessing SN sites, or if the state pretends to have some criminal penalty or civil cause of action against a SN site that’s potentially based off-state or even offshore, for failure to remove a user. Sounds like the latter could be unenforceable. In the first case, I have my reservations if the proposal is a blanket mandatory ban that removes judicial discretion in sentencing (but that’s just my view on sentencing in general: tell the judge what’s the least and the most he can impose but don’t turn him into a robot)
One also wonders, if the wording is such that the person would become barred from employment at any workplace that utilized a blog or web-forum format for advertising or customer relations. That’s why we’re questioning the “overbroad” aspect: it’s sold to the public as that this keeps the predators out of Facebook or Myspace where the teens hang out, but is it/can it be really focused that way? (Or if you’d rather think of it the other way, could your intent of cutting them off completely be subverted by saying, “hey, an old-school listserv is not a SN site”?)
Otherwise it would be IMO indeed one more example of Hate The Pervert Theater. As to legality and constitutionality, what I’ve called the* “we can’t execute you so we’ll just keep making your life suck every way we can” *doctrine of how to handle “sex offenders” has held up pretty well throughout most challenges. Although it’s not directly related, check out cartoonist Mike Diana’s “Boiled Angel” obscenity case where as part of the conviction he was banned from ***drawing even for his own private enjoyment ***for a set period.
(BTW, I wonder if the cases involving “no access to any computer whatsoever, period” may soon become deemed an unwieldy probation term, as more things become done only via computer. Can that person operate an airport ticket kiosk?)
There is a difference, though, between requiring a sex offender not to live within 500 yards of a school as part of his or her sentence, and passing a law stating no sex offender may live within 500 yards of a school. The first one is, by its very nature, more tailored, as it is applicable only to that individual.
As I said, these laws are probably constitutional - to the extent that, as you say, restrictions such as the habitation one, even when imposed as blanket bans, are considered constitutional. Hell, they are even considered constitutional, IIRC, when that excludes the person from the entire town.
The thing is you’re not taking away their right to free speech as long as their are acceptable alternatives.
You can’t compare Facebook to mail or phone. It’s apples and oranges. You can compare the INTERNET to mail or phone, but not just one site or various social networking sites.
You certainly could ban a sex offender from all contact with a victim and his/her family.
Any law though would suffer from a few things.
First of all is, who decides social networking. MySpace has lost favour to Facebook and Twitter. In a year, who knows what will be the next “big thing.” Obivously you don’t want to write a specific law naming specific sites, because it wouldn’t hold up.
So you’re stuck with, “how to define a social networking site.” Once you define an issue, people immediately come up with work-a-rounds for these laws.
The other thing is how do you know that that person is actually doing it. Suppose I am a man who is a registered sex offender. I serve 5 years go home and my wife gets mad, gets on our computer and signs up for Facebook under my name using my picture.
OK, I didn’t do nothing. How do I prove I didn’t do it?
Finally remember laws like these are designed as TOOLS not for effective prevention. We all know you can ban all the sexual preditors you want, they’ll just do it anyway.
The point is to give the police and parole/probation officers a tool to control the sex offender.
Supposing a registered sex offender is thought to be doing it again. But the cops or parole officers can’t get evidence. This “tool” allows an easy way for the cops or other authorities to reincarserate a potential offender who hasn’t done anything but might.
I think, when most people hear the term sex offender, it conjures up images of disgusting pedophiles. It’s like, The most odious classification. The worst crime one could commit.
But, our f***ed up legal system disgusts me almost as much as the perverts that it protects. Bottom line on that point: if I found out someone had touched my child, I definitely would not call the cops; wouldn’t want the law involved at all. Little old ladies who embezzle money, caretakers accused by mentally demented elderly of abuse, junkie shoplifters who try to fight their way out of the store, etc., get more time (without parole) than a “first time” baby raper! That’s how it is in Texas anyway.
The problem is that “sex offender” is to broad of a classification. About 5 or 6 years ago Dallas police started cracking down on the strippers. They’d come in undercover, take names of girls violating stupid laws, then the next night they’d all run up in the club wearing friggin’ ski masks! A stripper on stage cannot touch her own nipple! :smack: They actually arrested a friend of mine. And guess what, she was unlucky enough to be busted 3 times for dumb stuff like that (cant remember what the other one’s were) and now she is a registered sex offender for life! When her neighbors find her on sex offender databases, it doesn’t specify that she was a dirty dancer, it just says she’s a sex offender.
I know another girl who cant take her own kids to their school or playgrounds because the father of one of those kids was a 16-year-old runaway… she was 18!!! Now she’s a registered sex offender for life!
I would like to see the lawmakers completely reform “sex offense” laws and punishments. Too bad most of them are undercover pervs themselves.
Oops, sorry 'bout that guys, I completely missed y’alls issue here; I’m not really a debater.
Then again, the monitoring of facebook isn’t a new concept to me. Here’s some advice for the common-sense challenged: if you’re on probation or parole, in a relatively small county, don’t post pictures of yourself getting all drunk at club on your facebook page. That’s two violations, drinking alcohol and being in bar. You know these POs spend their days collecting piss and playing with their facebook page, they’re bound to get bored and check out their case’s. Now you got 90 meetings in 90 days over a picture you didn’t look that hot in anyway.
That’s the kind of thing I was going to mention. Or people caught peeing in public, or being accused of child molestation as a tactic in a divorce, publishing porn that offends some prudes on the other side of the country, or just being gay and old enough to have been labeled a sex offender under the laws of the time; it’s ridiculously easy to get labeled that. The “sex offender” label doesn’t give you much clue as to if a person is dangerous or even guilty of anything wrong.
So, it’s a useless, feel-good law that’s likely to be aimed at the wrong people. All because as a society we are in full holy war mode against “perverts” and therefore don’t really care about the justice or effectiveness of the methods used in that war, or even about the guilt of the targets.