John Doe v. Prosecutor, Marion C

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2512
JOHN D OE,
Plaintiff-Appellant,
v.
P ROSECUTOR, M ARION C OUNTY, INDIANA,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:12-cv-00062-TWP-MJD—Tanya Walton Pratt, Judge.
A RGUED N OVEMBER 27, 2012—D ECIDED JANUARY 23, 2013
Before F LAUM and T INDER, Circuit Judges, and T HARP,
District Judge.Œ
F LAUM, Circuit Judge. A recent Indiana statute
prohibits most registered sex offenders from using
social networking websites, instant messaging services,
Œ
The Honorable John J. Tharp Jr., United States District
Court for the Northern District of Illinois, sitting by designation.
2 No. 12-2512
and chat programs. John Doe, on behalf of a class of
similarly situated sex offenders, challenges this law on
First Amendment grounds. We reverse the district court
and hold that the law as drafted is unconstitutional.
Though content neutral, we conclude that the Indiana
law is not narrowly tailored to serve the state’s interest.
It broadly prohibits substantial protected speech rather
than specifically targeting the evil of improper communi-
cations to minors.
I. Background
A. Legislative Background
Indiana Code § 35-42-4-12 prohibits certain sex
offenders from “knowingly or intentionally us[ing]: a
social networking web site” 1 or “an instant messaging
or chat room program” 2 that “the offender knows allows
1
A “ ‘social networking web site’ means an Internet web site
that: (1) facilitates the social introduction between two or
more persons; (2) requires a person to register or create an
account, a username, or a password to become a member of the
web site and to communicate with other members; (3) allows
a member to create a web page or a personal profile; and
(4) provides a member with the opportunity to communicate
with another person. The term does not include an electronic
mail program or message board program.” § 35-42-4-12(d).
2
An “ ‘instant messaging or chat room program’ means a
software program that requires a person to register or create
an account, a username, or a password to become a member
(continued...)
No. 12-2512 3
a person who is less than eighteen (18) years of age to
access or use the web site or program.” § 35-42-4-12(e)
(violation constitutes a Class A misdemeanor but sub-
sequent violations constitute Class D felonies). The
law applies broadly to all individuals required to
register as sex offenders under Indiana Code § 11-8-8,
et seq., who have committed an enumerated offense.
§ 35-42-4-12(b)(1)-(2). The law does not differentiate
based on the age of victim, the manner in which
the crime was committed, or the time since the predicate
offense. Subsection (f) provides an express defense if
the individual did not know the website allowed
minors or upon discovering it does, immediately ceased
further use. § 35-42-4-12(f). Subsection (a) exempts
persons convicted of so-called Romeo and Juliet relation-
ships where the victim and perpetrator are close in age
and had a consensual relationship. § 35-42-4-12(a).
B. Procedural Background
1. John Doe’s Suit
In 2000, Doe was arrested in Marion County and con-
victed of two counts of child exploitation. Although he
2
(...continued)
or registered user of the program and allows two or more
members or authorized users to communicate over the
Internet in real time using typed text. The term does not
include an electronic mail program or message board pro-
gram.” § 35-42-4-12(c).
4 No. 12-2512
was released from prison in 2003 and is not on any form
of supervised release, he must register as a sex offender
on Indiana’s registry. And because child exploitation
is an enumerated offense, section 35-42-4-12 prohibits
Doe from using the covered websites and programs. Doe
filed suit against the Marion County Prosecutor alleging
the law violates his First Amendment rights (as incorpo-
rated under the Fourteenth Amendment).3 The district
court granted his request to proceed anonymously
and later granted his motion to certify a class pursuant
to Federal Rule of Civil Procedure 23(b)(2). It defined
the class as:
all Marion County residents required to register as
sex or violent offenders pursuant to Indiana law
who are not subject to any form of supervised release
and who have been found to be a sexually violent
predator under Indiana law or who have been con-
victed of one or more of the offenses noted in
Indiana Code § 35-42-4-12(b)(2) and who are not
within the statutory exceptions noted in Indiana
Code § 35-42-4-12(a).
Doe filed a motion for preliminary injunction, but the
parties agreed it should be treated as a motion for a
permanent injunction and decided after a full bench
trial. The district court ordered as much. See Fed. R. Civ.
P. 65(a)(2). The parties further agreed no additional
discovery was required and there would be no live evi-
3
He sued the City of Indianapolis as well, but it was dis-
missed by stipulation.
No. 12-2512 5
dence at trial. Accordingly, the bench trial consisted of
the introduction of four affidavits—two from Doe and
two from social media experts—as well as arguments
from counsel.
2. Lower Court Decision
After the bench trial, the district court upheld the
law and entered judgment for the defendant. It found
the law implicates Doe’s First Amendment rights but
held the regulation is narrowly tailored to serve a sig-
nificant state interest and leaves open ample alternative
channels of communication.
Although the court noted that the statute “captures
considerable conduct that has nothing to do” with the
state’s legitimate interest in protecting children from
predators, it asserted “Doe never furnishes the Court
with workable measures that achieve the same goal
(deterrence and prevention of online sexual exploitation
of minors) while not violating his First Amendment
rights.” The district court reasoned that the law is
narrowly tailored because it “only preclude[s] . . . using
web sites where online predators have easy access” to
children, but “the vast majority of the internet is still at
Mr. Doe’s fingertips.” The district court concluded that
the law is not “substantially broader than necessary”
because social networking sites without minors, e-mail,
and message boards present alternative methods to
communicate as Doe wished.
Doe offered another Indiana law that already pro-
hibits online solicitation of children as evidence that
6 No. 12-2512
the law is not narrowly tailored. The district court
rejected this argument stating that “the statutes serve
different purposes”: “[o]ne set of statutes aims to punish
those who have already committed the crime of solicita-
tion,” 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 district court concluded by noting the
statute furthers the state’s “strong interest in ensuring
that sex offenders do not place themselves in these poten-
tially dangerous situations.”
On the issue of alternative channels of communica-
tion, the district court listed several social network al-
ternatives, namely: “the ability to congregate with
others, attend civic meetings, call in to radio shows,
write letters to newspapers and magazines, post on
message boards, comment on online stories that do not
require a Facebook [account], email friends, family,
associates, politicians and other adults, publish a blog,
and use social networking sites that do not allow minors.”
Doe timely appeals this decision.
II. Discussion
We review a denial of a permanent injunction for
abuse of decision, accepting all factual determinations
unless they are clearly erroneous. 3M v. Pribyl, 259 F.3d
587, 597 (7th Cir. 2001). However, this case presents a
No. 12-2512 7
single legal question, which we review de novo.4 The
statute clearly implicates Doe’s First Amendment rights
as incorporated through the Fourteenth Amendment. It
not only precludes expression through the medium of
social media, see Cohen v. California, 403 U.S. 15, 24 (1971)
(“the usual rule [is] that governmental bodies may not
prescribe the form or content of individual expression”),
it also limits his “right to receive information and
ideas,” Stanley v. Georgia, 394 U.S. 557, 564 (1969); see
Procunier v. Martinez, 416 U.S. 396, 408-09 (1974)
(“[T]he addressee as well as the sender of direct personal
correspondence derive[] from the First and Fourteenth
Amendments a protection against unjustified govern-
mental interference with the intended communication.”).
The Indiana law, however, is content neutral because
it restricts speech without reference to the expres-
sion’s content. Turner Broadcasting Sys. v. FCC, 512 U.S. 622,
641-42 (1994). As such, it may impose reasonable “time,
4
The state argues that the district court’s citation to a report
(that was not in the record) deserves deference on appeal.
However, only adjudicative facts are entitled to the clearly
erroneous standard of review. Adjudicative facts concern
the parties’ conduct and are the facts that normally go to a
jury. They constitute the facts that appellate courts do not
disturb on appeal. The report, on the other hand, contains
legislative facts. They are facts in the literal sense, but they
come from outside the case and bear on the prudence or
meaning of a legal rule. See Fed. R. Evid. 201(a); Fed. R. Evid.
201 Advisory Committee Note to Subdivision (a) of 1972
Proposed Rules.
8 No. 12-2512
place, or manner restrictions.” Clark v. Comm. for Creative
Non-Violence, 468 U.S. 288, 293 (1984). To do so, the law
must satisfy a variant of intermediate scrutiny—it must
be “narrowly tailored to serve a significant governmental
interest” and “leave open ample alternative channels for
communication of the information.” Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989). Because we conclude
the law is not narrowly tailored, we need not reach
the alternative channel inquiry.
The state initially asserts an interest in “protecting
public safety, and specifically in protecting minors from
harmful online communications.” Indiana is certainly
justified in shielding its children from improper sexual
communication. Doe agrees, but argues the state
burdens substantially more speech than necessary to
serve the intended interest. Indiana naturally counters
that the law’s breadth is necessary to achieve its goal.
On this point, the Supreme Court’s cases on narrow
tailoring are instructive.
“A complete ban [such as the social media ban at
issue] can be narrowly tailored, but only if each activity
within the proscription’s scope is an appropriately
targeted evil.” See Frisby v. Schultz, 487 U.S. 474, 485
(1988). In Frisby, the Court upheld an ordinance that
prohibited picketing focused on a particular residence.
Id. at 477. The regulation sought to stop a recent pattern
of abortion protesters that surrounded abortion doc-
tors’ homes. The Court found that the state had a signifi-
cant interest in protecting “residential privacy,” and a
“complete prohibition” was the only way to further
No. 12-2512 9
this interest. Id. at 484-86. The Court reasoned that “the
evil of targeted residential picketing . . . is created by
the medium of expression itself.” Id. at 487-88 (internal
quotations omitted). A ban on all picketing would
have gone too far because only the focused residential
protests threatened the state interest. Id. at 486. Similarly,
in City of Los Angeles v. Taxpayers for Vincent, a city ordi-
nance prohibited posting signs on public property. 466
U.S. 789, 792 (1984). The Court concluded these signs
constituted “visual blight” and the regulation furthered
the city’s legitimate interest in esthetic values. Id. at 805.
The Court upheld the complete ban reasoning the “sub-
stantive evil—visual blight—is not merely a possible
by-product of the activity, but is created by the medium
of expression itself.” Id. at 810.
In contrast to Frisby and Vincent, the Supreme Court has
invalidated bans on expressive activity that are not the
substantive evil if the state had alternative means of
combating the evil. In Schneider v. Town of Irvington, the
Court struck down various blanket prohibitions against
distributing handbills. 308 U.S. 147, 162-64 (1939). The
laws in that case furthered a legitimate interest in pre-
venting litter. But unlike the ordinances in Frisby and
Vincent, the expressive activity—handing paper to
people in public—did not produce the evil. The recipi-
ents’ incidental decision to drop the paper did. As such,
the Court required the cities to prevent littering
by enforcing littering laws; they could not prohibit
activity that might incidentally result in littering. Id. at
162-63. Similarly, in Martin v. City of Struthers, the Court
10 No. 12-2512
invalidated an ordinance that prohibited all door-to-door
distributions or solicitations because “[t]he dangers of
distribution can so easily be controlled by traditional
legal methods, leaving to each householder the full right
to decide whether he will receive strangers as visitors.”
319 U.S. 141, 147 (1943). For example, those who did
not want to receive a stranger could post no trespassing
signs, and states could permissibly punish those who
disobeyed the warnings. Id.
Turning to the Indiana statute, the state agrees there
is nothing dangerous about Doe’s use of social media
as long as he does not improperly communicate with
minors. Further, there is no disagreement that illicit
communication comprises a minuscule subset of the
universe of social network activity. As such, the Indiana
law targets substantially more activity than the evil it
seeks to redress. Even the district court agreed with
this sentiment, stating the law “captures considerable
conduct that has nothing to do” with minors. Indiana
prevents Doe from using social networking sites for
fear that he might, subsequent to logging on to the
website or program, engage in activity that Indiana is
entitled to prevent. But like the states in Schneider and
Martin, Indiana has other methods to combat
unwanted and inappropriate communication between
minors and sex offenders. For instance, it is a felony
in Indiana for persons over twenty-one to “solicit”
children under sixteen “to engage in: (1) sexual inter-
course; (2) deviate sexual conduct; or (3) any
fondling intended to arouse or satisfy the sexual desires
of either the child or the older person.” Ind. Code
No. 12-2512 11
§ 35-42-4-6 (it is also a felony for person between the
ages of eighteen to twenty-one to solicit children under
fourteen). A separate statute goes further. It punishes
mere “inappropriate communication with a child” and
communication “with the intent to gratify the sexual
desires of the person or the individual,” Ind. Code
§ 35-42-4-13 (applies to persons over twenty-one com-
municating with children fourteen or younger). Signifi-
cantly, both statutes have enhanced penalties for using
a computer network and better advance Indiana’s
interest in preventing harmful interaction with children
(by going beyond social networks). They also ac-
complish that end more narrowly (by refusing to
burden benign Internet activity). That is, they are neither
over- nor under-inclusive like the statute at issue here.5
In conducting this analysis, however, we must be
most careful not to impose too high a standard on Indi-
ana. The Supreme Court has continually reminded
us that the state’s regulation “need not be the least re-
strictive or least intrusive means of” combating the
state’s legitimate interests, Ward, 491 U.S. at 798, and
post-hoc analyses, like the one we are engaging in, are
particularly susceptible to running afoul of this principle.
At first glance, this standard seems in tension with lan-
guage in Frisby noting a law must “target[] and eliminate[]
no more than the exact source of the ‘evil’ it seeks to
remedy,” Frisby, 487 U.S. at 485, and indeed, that is
5
To be sure, the ages in the existing statutes are different.
But Indiana could adjust that aspect of the laws as it sees fit.
12 No. 12-2512
what the dissenters in Ward alleged, see Ward, 491 U.S.
at 804-07 (Marshall, J., dissenting). However, Ward scales
back Frisby in a limited number of situations. On the
one hand, Ward adds a quantitative component to the
Frisby language by noting the law must not be “sub-
stantially broader than necessary.” Id. at 800 (emphasis
added). On the other hand, Ward also embodies an
administrability exception in stating “the requirement
of narrow tailoring is satisfied so long as the [state
interest] would be achieved less effectively absent the
regulation.’ ” Ward, 491 U.S. at 799 (original quotations
and alterations omitted). In other words, the Constitu-
tion tolerates some over-inclusiveness if it furthers the
state’s ability to administer the regulation and combat
an evil.
Hill v. Colorado is illustrative. 530 U.S. 703 (2000). There,
the state, concerned about abortion protests, passed a
statute that prohibited approaching individuals within
a 100-foot radius of a healthcare facility “for the purpose
of passing a leaflet or handbill to, displaying a sign to,
or engaging in oral protest, education or counseling
with [an]other person” on public property. Id. at 707.
The Court acknowledged that in furthering the
state’s interest in providing unimpeded access to
healthcare facilities and shielding patients from
potentially traumatic encounters, the state’s blanket
prohibition on approaching individuals would “some-
times inhibit a demonstrator whose approach in fact
would have proved harmless.” Id. at 729. But this
over-inclusiveness was “justified by the great difficulty”
in creating a law that “targets and eliminates no
more than the exact source of the ‘evil.’ ” See id.;
No. 12-2512 13
Frisby, 487 U.S. at 485. The Court hypothesized that the
ideal statute would prove convoluted, potentially pro-
tecting “a pregnant woman from physical harassment
with legal rules that focus exclusively on the individual
impact of each instance of behavior, demanding in each
case an accurate characterization (as harassing or not
harassing) of each individual movement within the
8-foot boundary.” Hill, 530 U.S. at 729. Thus, the statute
at issue in Hill was constitutional because (1) the pro-
hibited expression that did not further the state
interest was minimal, and (2) its inclusion stemmed
from the difficulty in carving a rule that covered
precisely the evil contemplated by the legislature.
The Indiana statute’s over-inclusiveness, however,
cannot be justified by the administrability concerns
described in Hill. With little difficulty, the state could
more precisely target illicit communication, as the
statutes above demonstrate. See Ind. Code §§ 35-42-4-6;
35-42-4-13. To be sure, other sex-offender or social
media statutes might present different administrability
questions. For instance, a hypothetical law banning all
communication between minors and sex offenders
through social media burdens less speech but never-
theless creates problems. Such a law frees most ex-
pression from regulation but still prohibits substantial
harmless speech—e.g., at a very basic level, it would
prohibit conversations between a parent and child if the
parent is a sex offender. But as additional exceptions
make a law more precise, the over-inclusiveness con-
cerns decrease until the Hill administrability concerns
dominate. Where that point lies, however, is for an-
other case.
14 No. 12-2512
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 “pun-
ish” those who have “already committed” a crime.
The punishment is what “prevent[s] and deter[s]” unde-
sirable 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).
The state also makes the conclusory assertion that “the
State need not wait until a child is solicited by a sex
No. 12-2512 15
offender on Facebook.” Of course this statement is
correct, but the goal of deterrence does not license
the state to restrict far more speech than necessary to
target the prospective harm. Moreover, the state never
explains how the social network law allows them to
avoid “waiting.” “That the [state’s] asserted interests are
important in the abstract does not mean . . . that [its
regulation] will in fact advance those interests.” See
Turner, 512 U.S. at 664. The state “must do more than
simply posit the existence of the disease sought to be
cured,” and “the regulation [must] in fact alleviate
these harms in a direct and material way.” Id. (internal
quotations omitted). The state bears this burden, and
it does not explain how the law furthers this interest.
Despite the infirmity of the statute in this case, we do
not foreclose the possibility that keeping certain sex
offenders off social networks advances the state’s
interest in ways distinct from the existing justifications.
For example, perpetrators may take time to seek out
minors they will later solicit. This initial step requires
time spent on social networking websites before the
solicitation occurs. In the future, the state may argue
that prohibiting the use of social networking allows law
enforcement to swoop in and arrest perpetrators
before they have the opportunity to send an actual solic-
itation. This argument remains speculative. And it is
uncertain whether such a law could advance this
interest without burdening a “substantially broader”
than necessary group of sex offenders who will not use
16 No. 12-2512
the Internet in illicit ways.6 See Ward, 491 U.S. at 800. But
perhaps such a law could apply to certain persons
that present an acute risk—those individuals whose
presence on social media impels them to solicit children.
Currently, the state presents no evidence that covered
individuals present this sort of risk. We speculate only
to make clear that this decision should not be read to
limit the legislature’s ability to craft constitutional solu-
tions to this modern-day challenge.
The district court also cited Kansas v. Hendricks, 521
U.S. 346 (1997), for the proposition that the state may
“ensur[e] that sex offenders do not place themselves in
6
This example brings the law’s overbreadth concerns to the
surface. Today, we facially invalidate the Indiana law because it
is not narrowly tailored to serve the state’s interest and any
plaintiff could show as much. See Sec’y of State of Md. v. Joseph H.
Munson Co., 467 U.S. 947, 967 n.13 (1984) (“[L]egislation re-
peatedly has been struck down ‘on its face’ because it was
apparent that any application of the legislation would create
an unacceptable risk of the suppression of ideas.” (second
quotation omitted)); e.g., United States v. Playboy Entm’t Grp.,
529 U.S. 803, 806-07 (2000). But assuming arguendo that
Doe’s (or a different plaintiff’s) speech is unprotected or
the law could constitutionally be applied to them, it still
inexplicably applies to sex offenders whose crimes did not
involve the Internet or children. As such, a plaintiff could still
bring a successful facial challenge because the law “applie[s]
unconstitutionally to others, in other situations not before the
court” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973); e.g.,
United States v. Stevens, 130 S. Ct. 1577 (2010).
No. 12-2512 17
these potentially dangerous situations.”7 However,
Hendricks is inapposite. It rejected a substantive due
process challenge to a Kansas statute permitting the
state to commit persons that are “likely to engage in
sexually violent behavior.” Id. at 351 (quoting Kan. Stat.
Ann. § 59-29a01 (1994)). The case did not present a First
Amendment challenge. Notwithstanding, the Hendricks
statute proceeds cautiously and is far more targeted than
the Indiana statute here. The Hendrick’s law provided
respondents a number of procedural safeguards before
a trial in which the state had to prove beyond a
reasonable doubt that petitioners had a “mental abnor-
mality” that made them “likely to engage in the
predatory acts of sexual violence.” Id. at 352. They
were also entitled to regular review after their confine-
ment to ensure they still met the act’s criteria. Id. at
353. We do not suggest that these procedures are a pre-
requisite to a First Amendment deprivation; Hendricks-
style civil commitment presents a far greater depriva-
tion of liberty than banning social networking. But
Hendricks nevertheless illuminates the imprecision of
the Indiana statute. Unlike the individualized assess-
ment that ensured each respondent was “likely” to
commit the redressable evil, the Indiana legislature im-
precisely used the sex offender registry as a universal
proxy for those likely to solicit minors. There may well
be an appropriate proxy, but the state has to provide
7
The district court actually cited United States v. Comstock, 130
S. Ct. 1949, 1954 (2010), but Comstock was merely an extension
of Hendricks and its progeny to the federal government.
18 No. 12-2512
some evidence, beyond conclusory assertions, to justify
the regulation.
This case also differs from our decision in Doe v. City
of Lafayette, 377 F.3d 757 (2004) (en banc). That case in-
volved an individual with an extensive history of sex
offenses against children, who admitted he was going
to the city parks “cruising” and “looking” for children.
Id. at 759-60. The city issued a unilateral order banning
the plaintiff from the city parks without a hearing. Id.
at 760. Unlike this case, the regulation did not im-
plicate the First Amendment so we upheld it under the
deferential rational basis review. Id. at 764, 773. Other
laws restricting sex offenders’ proximity to schools or
parks have been similarly upheld under rational basis
review because courts have found they do not
implicate the First Amendment or involve a funda-
mental right. See, e.g., Smith v. Doe, 538 U.S. 84 (2003)
(holding that the Alaska Sex Offender Registration Act
did not violate the Ex Post Facto Clause); Conn. Dep’t of
Pub. Safety v. Doe, 538 U.S. 1 (2003) (holding that the
public disclosure provision of Connecticut’s sex offender
registration law did not violate the Due Process Clause);
Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (holding resi-
dency restriction within two thousand feet of school or
child care facility constitutional under rational basis
review).8
8
The only court (as far as we know) to analyze a sex offender
statute under the First Amendment was the Tenth Circuit in Doe
v. City of Albuquerque, 667 F.3d 1111 (10th Cir. 2012). The court
(continued...)
No. 12-2512 19
Finally, this opinion should not be read to affect district
courts’ latitude in fashioning terms of supervised
release, 18 U.S.C. § 3583(a) (“The court, in imposing a
sentence to a term of imprisonment for a felony or
a misdemeanor, may include as a part of the sentence a
requirement that the defendant be placed on a term of
supervised release after imprisonment[.]”), or states
from implementing similar solutions. Our penal system
necessarily implicates various constitutional rights, and
we review sentences under distinct doctrines. Terms of
supervised release, for instance, must be “reasonably
related to the [sentencing] factors” and “involve[] no
greater deprivation of liberty than is reasonably neces-
sary.” § 3583(d)(1)-(2). Thus, in assessing the need for
incapacitation, see § 3553(a)(2)(C), a court could conceiv-
ably limit a defendant’s Internet access if full access
posed too high a risk of recidivism. United States v. Scott,
316 F.3d 733, 736-37 (7th Cir. 2003). The alternative
to limited Internet access may be additional time in
prison, which is surely more restrictive of speech than a
limitation on electronics. This option is not without
8
(...continued)
struck down a local library rule banning registered sex
offenders after concluding the library was a limited public
forum and the ban implicated the First Amendment. The case
is unique, however, in that the city offered no evidence sup-
porting its ban. Instead, it erroneously argued that it had
“no burden” under Ward. See id. at 1131-32. Thus, the court
left open the possibility that other restrictions could survive
First Amendment scrutiny.
20 No. 12-2512
limits, see United States v. Holm, 326 F.3d 872, 878-79 (7th
Cir. 2003) (holding total Internet ban was too broad and
compiling similar cases from other circuits), but terms
of supervised release or parole may offer viable constitu-
tional alternatives to the blanket ban—imposed outside
the penal system—in this case.
We conclude by noting that Indiana continues to
possess existing tools to combat sexual predators. The
penal system offers speech-restrictive alternatives to
imprisonment. Regulations that do not implicate the
First Amendment are reviewed only for a rational basis.
The Constitution even permits civil commitment under
certain conditions. But 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.
III. Conclusion
For the foregoing reasons, we R EVERSE the district
court’s decision, and R EMAND with instructions to enter
judgment in favor of Doe and issue the injunction.
1-23-13