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Sex offenders have right to tweet, appeals court says

Indiana law banning sex offenders from social networks restricts "far more speech than necessary" and is unconstitutional, federal appeals court says.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
2 min read

An Indiana law banning sex offenders from Facebook, Twitter, and other social networks is unconstitutional, a federal appeals court ruled today.

The U.S. Seventh Circuit Court of Appeals tossed out a state law that made it a misdemeanor -- and, in some cases, a felony -- for registered sex offenders to use a "social networking Web site."

"The Indiana law targets substantially more activity than the evil it seeks to redress," the three-judge panel unanimously concluded in an opinion (PDF) written by Joel Flaum.

The U.S. Constitution's First Amendment, which restricts the government from curbing freedom of expression, means the Indiana law cannot stand, the court concluded: "Laws that implicate the First Amendment require narrow tailoring. Subsequent Indiana statutes may well meet this requirement, but the blanket ban on social media in this case regrettably does not."

Indiana's law was simultaneously over- and under-inclusive. It targeted Web sites that permit minors to sign up and also allow users to "create a Web page or a personal profile" and provide an "opportunity to communicate with another person" -- a definition that could sweep in popular sites including Amazon.com, YouTube, and CNET, all of which allow users to create profiles.

But the law applied only to "Web sites," meaning it may not have applied to social networks accessed exclusively through iOS and Android apps. Instant messaging and chat rooms were explicitly excluded from the sweep of the law, along with adult-only social networks.

A registered sex offender released from prison in 2003 and living in Marion County, Ind., anonymously sued to overturn the law, calling himself John Doe. He lost before the trial court, which concluded the Indiana law is not "substantially broader than necessary" because Doe had the option of using adult-only social networks and e-mail.

The Seventh Circuit disagreed, saying a blanket ban goes too far because "Indiana has other methods to combat unwanted and inappropriate communication between minors and sex offenders."

Facebook's legal terms say: "You will not use Facebook if you are a convicted sex offender." MySpace and Facebook announced that policy in 2009 after extralegal political pressure -- which would have been unconstitutional if adopted as a formal policy -- from then-New York Attorney General Andrew Cuomo, who's now governor.

Twitter and Google+, on the other hand, do not appear to have policies banning sex offenders.

Last year, a federal judge overturned a Louisiana state law that also restricted sex offenders' use of social networks.

Correction, 11:12 a.m. PT: The subhead of this story incorrectly identified the state in which this law existed. That state is Indiana.