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IN: Facebook Sex Offenders Ban Ruled Unconstitutional By Indiana Court

INDIANAPOLIS — An Indiana law that bans registered sex offenders from using Facebook and other social networking sites that can be accessed by children is unconstitutional, a federal appeals court ruled Wednesday.

The 7th U.S. Circuit of Appeals in Chicago overturned a federal judge’s decision upholding the law, saying the state was justified in trying to protect children but that the “blanket ban” went too far by restricting free speech. The 2008 law “broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors,” the judges wrote. Full Article

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  1. Spaced

    I’m a resident of California and I was on Facebook from 2008 to 2010. I kept in touch with family and friends. When i went to log in one day I discovered that Facebook had disabled my account. Upon looking closely at the terms and conditions, the website does state the following…..

    **Registration and Account Security:
    -You will not use Facebook if you are a convicted sex offender.
    -If we disable your account, you will not create another one without our permission.
    http://www.facebook.com/legal/terms

    The first question I had was how did they know? I had my privacy level set so high that it didn’t show anything. My only explanation for it was that other vigilante organizations out there were looking for me on a daily basis as I had proof of this is other areas of my life. So I assumed they reported me.

    I let it go and moved on without Facebook but it does always bug me once in a while because I have to find out from other friends what my siblings are up to. or to see photos of my nephews etc. Anyway I guess the ignorant question I have is this… How can courts make rulings like this for specific states when Facebook is a private company and can exclude whom ever they like? Are there some rights I’m missing or not aware of?

    As much as I don’t want to give anymore of my time to someone like Chris Kelly (even though he is not currently associated with Facebook) who funded prop 35, I know I’ve missed out on many networking opportunities for employment and still just feel left out of every single social conversation I have. If I had a dime for every time I’ve had to say “No i’m not on Facebook” and lie about why..i’d be quite rich

    My offense did not happen through a social networking site, and I’ve been through 5 years of mandated counseling and probation and have been free of that for over a year.

    I’d love to hear if anyone has any thoughts on my question though!
    Thanks so much.

    • DZ

      I think the issue comes down to the difference between individual rights and the appropriate (or not) use of governmental power concerning individual rights.

      The government can not pass a law that takes away an individual’s constitutional rights, such as free speech. So for IN to pass a law like this gets overturned because that level of government overstepped their power and violated the rights of individuals.

      But Facebook is not the government. They are just a business that provides a service. this gives them more leeway. The law states a business may not discriminate or deny service based on race, gender, color, national origin, religion, disability or sexual orientation. That leaves criminal record out in the cold. Also, your freedom of speech stops when it crosses into someone else’s property. You have the right to voice your opinion in public, but not to enter someone’s home, or private business, and demand to be heard: they can insist you leave and be in the right.

      It is a fine line for corporations & businesses. Facebook can argue that no one is required to use their service, so denying someone their platform for speech is their individual right. But for government to impose this is another matter entirely.

      It is like how an individual has the right to put up a religious christmas scene on their lawn: that is their first amendment right and another individual not liking it doesn’t matter, but the government does not have the right to put up the same in public space because that violates the first amendment rights of others.

      It may be that Facebook’s TOS violates peoples’ freedoms, but I suspect it’d be hard to prove and might turn out they’re in their rights.

      I believe that criminal records, political beliefs and such should be added to the 14th amendment and it should extend further into economic rights, such as using Facebook and other business services, but I suspect the laws we currently have may not be sufficient to insure such rights. Just how I understand it.

      • J

        The California statue, to my knowledge, makes it unlawful for a business to deny service to any registrant. While that may hold water when the company private, the IPO should increase face book’s requirement to adhere to laws against discrimination.
        The statute also claims to prevent discrimination against registrants according to general laws in place: “any protected group of individuals” and leaves it vague, as these laws generally tend to do.
        I understand these laws have been analyzed and are found to protect politicians and police organizations more than they protect the public as they claim to do. They serve several purposes in this regard: 1) Give the appearance that lawmakers are “doing something about it”; 2)Providing re-election salvos for incumbent and aspiring politicians; 3) Providing search and seizure capabilities against people who have completed their sentences; 4) Enact retroactive punishment in essence in violation of ex-post-facto constitutional protections. It is very unnerving to read that while Judge Henderson stated the law was over broad, he did not get into the area of ex-post-facto – at least in what I have read.
        The law also states that people can take necessary action to protect themselves and others from the potential danger or harm posed by these registrants. Potential is the grey area and that is where the great majority of registrants find themselves caught up in vigilante schemes set up by neighborhood watch groups and in many cases busy bodies that have nothing better to do (nosy neighbors…) This constitutes discrimination but there are few public officials what will risk their popularity by taking on any “Tyranny of the Majority” issues which is also another breach of constitutional rights at stake here.
        If the state were to act against face book for violating the law by denying the use of their business services to registrants, there would be a precedent set. Unfortunately the people we would rely on to do this are thinking about their political survival going forward above anything else. You can just take a look at the progress of various cases that will prove these points. This post was fragmented but I think I touched upon several points that are relative and most likely redundant in this thread.
        Thanks to CaRSOL and EFF for your efforts to restore dignity and provide avenues for dialogue.

  2. mike

    I was very shocked and happy to see this article today. I’ve read articles where Texas, New Jersey, and New Mexico are trying to justify their up and coming restrictions for registrants online by using Indiana as an example. I didn’t know that the Indiana Law was being heard on a higher appellate after they’d won last time. Does anyone know of challenges to the Louisiana Law declaring that registrants must State that they are a “Sex Offender” on social networking sites? I really hope so as that is the true spirit of the scarlet letter (Primitive). It’s all about shaming human beings for past mistakes. Thanks for sharing this article CARSOL.

    • J

      Texas has a law pending that would force registrants to expose their circumstances on any social network site. My thoughts are that this violates a person’s rights against self incrimination. I don’t know enough about law to determine if this only applies in the pre-conviction phase. Exactly what are the guidelines? What if the person is barely literate; or does not posses proper grammar or usage. What then? Will the state step in and post something damaging on that person’s page? Will the company interject verbiage about danger – even if the registrant has been found to pose no risk to others beyond the initial case? I guess I believe in the adage that ‘there is no right way to do the wrong thing’. This seems to apply up and down in and out in the knee-jerk laws that apply to countless registrants. If these laws are intended to protect the public, I would feel more at ease if they included anyone who has taken the life of a human being under any circumstances whether it be dui or with the use of a weapon; or any circumstance other than an accident. What about anyone who has kidnapped or discharged a weapon in public; or committed mayhem; or harmed anyone with a weapon; carjacking?
      *
      If these laws ever head to the Supreme Court, it will not be good, because when it comes to cruel and unusual punishment, they always say State’s Rights prevail. But when it comes to states usurping Federal control, states actually have very few rights. If you ever want to define hypocrisy, take a look at these statutes and the lengths “public servants” go in order to propagate them even though they are based on the disdain held for registrants rather than the actual dangers they pose. I’ve probably strayed off-topic but thanks for the chance to respond.

  3. Spaced

    DZ that was fantastic info
    thank you!

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