Out of the Frying Pan and into the Mildly Uncomfortable Sauna: The Not-So-Bad-But-Still-Unconstitutional Social Networking Ban



The memory of pain can be one of the best painkillers. Anyone who has had the misfortune of enduring acute physical agony has later repurposed that nightmare as a psychic analgesic. “This needle might hurt, but it's nothing compared to that time I broke my arm. I can do this.” Previous extremes make the mild more bearable. This holds true for a surprising number of situations: long plane delays, expensive fines, and now sex-offender Internet bans. (Don’t worry if that last category didn’t make too much sense, I’m just about to explain.)

A week ago, Illinois Governor Pat Quinn signed a bill, HB 1314, making it illegal for convicted sex offenders to access a “social networking website,” defined as:

“an Internet website containing profile web pages of the members of the website that include the names or nicknames of such members, photographs placed on the profile web pages by such members, or any other personal or personally identifying information about such members and links to other profile web pages on social networking websites of friends or associates of such members that can be accessed by other members or visitors to the website. A social networking website provides members of or visitors to such website the ability to leave messages or comments on the profile web page that are visible to all or some visitors to the profile web page and may also include a form of electronic mail for members of the social networking website.”

So, if you get on the sex offenders list in Illinois there is a bevy of sites you cannot so much as visit. And it’s not just the usual suspects of Facebook and MySpace. LinkedIn, Focus, YouTube, and Twitter would all be off limits as well. 

Now though I think this law is likely overbroad (it would arguably ban sex offenders from using this very blog — as the complex, run-on language seems to imply that any communication and photohosting site is off limits) and probably unconstitutional (analysis below), I find myself having a rather muted reaction to it. I think this is due to the fact that I’ve recently written about lifetime and decade-long bans on any Internet use. Hell, a bill for mandatory physical castration is making the rounds in Alabama. When they are after your balls, I’m pretty sure you don’t mind that it’s only Twitter on the chopping block. (Note: I concede that there is a small, but growing segment of the population that would rather lose sexual function than access to Twitter. Members of this group, you know who you are. ) 

As I've written elsewhere, to pass the basic constitutional filter a restriction of rights must be rational and reasonable. The state must have a legitimate/rational goal and must take reasonable steps to achieve that goal without unnecessarily impinging on rights. In terms of sex offenders, this typically means tailoring — the state must show a link between a previous offense and a restriction, as well as a rationale for the severity of the restriction.

Sending an offender to drug rehab when he is a sexual, not substance, abuser would not pass this test. Similarly, banning a sex offender who had previously made harassing phone calls from owning or operating a phone would fail the test, because there are more reasonable ways to protect both the general public and the rights of the sex offender, say by monitoring his phone calls. 

To be fair, the Illinois bill is certainly a step in the right direction, restriction wise: banning only a certain functionality of Internet use rather than destroying the whole series of tubes. But the law is still problematic. For one, it eliminates the judicial fine tuning of release restrictions that is mandated in other jurisdictions. The offense might have nothing to do with the Internet, and thus the ban would have no nexus with the underlying crime. Moreover, it's a stretch to say that all social networking sites are populated by children; Focus, for example, does not represent the lollipop guild.

Also, if the bill is interpreted broadly, much of the Internet would be off limits, especially any site with an interactive forum. This would transgress an offender's right to receive information as well as his freedom of expression. While ripping out the tongues and eyes of sex offenders might make it more difficult for convicts to reoffend, it might (ever-so-slightly) violate their rights.

And we haven't yet talked about the (likely castrated) elephant in the room: enforcement. It is all too easy to create a fake profile on any site. Without a registration process backed by hard ID, the bill simply can't work. I suppose if the offender is especially stupid, he might use his real name. Even then, the name would have to be flagged by either a state agency or the social network itself. And judging from the stellar track record of other name-based black lists (I'm looking in your direction TSA), this no-tweet-list would probably become a comedy of errors.

So to sum up, the new law won't work and is probably unconstitutional, and I'm still relatively apathetic. This is almost certainly due to the fact that images of cyber- and physical castration are running through my head. I could write more, but I'm pretty sure that my male readers have long since lost the ability to concentrate. 

(Note: In case you didn't know, it's surprisingly easy to get on the sex offenders' registry of many states: visiting a prostitute, streaking, and urinating in public can all get you marked for life; though, to be fair, none of these are qualifying offenses in Illinois.)

(Andrew Moshirnia is a second-year law student at Harvard Law School and a regular CMLP blogger. He would like to remind you that there is some debate over the relationship between the words testis and testify.) 


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