First Amendment, Alive and Well in Nebraska

Yesterday, the federal district court in Nebraska issued its decision declaring most of Nebraska’s Sex Offender Registry statute unconstitutional as an abridgement of the freedom of speech protected by the 1st Amendment.  I was the Plaintiffs’ Expert in the case, so I was delighted with the outcome (and I will oh-so-discreetly point you to footnote 35, should you be interested in information about my involvement with the case).  It’s a fascinating bit of law and sociology; I had decided not to blog about it before a decision was rendered because of my involvement with the case, but now that the court has ruled in our favor, a few words.

The statute made it a  crime –  “unlawful use of the Internet by a prohibited sex offender” — for any person who was required to register with the federal Sex Offender Registry because of a prior conviction for one of a series of enumerated sex offenses (e.g., sexual assault of a child, “pandering” of a minor, child pornography, or criminal child enticement)  to:

“knowingly and intentionally [use] a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use [it].”

“Social networking site,” “instant messaging service,” and “chat room service” were all specially defined in the statute:

 “Social networking web site means a web page or collection of web sites contained on the Internet (a) that enables users or subscribers to create, display, and maintain a profile or Internet domain containing biographical data, personal information, photos, or other types of media, (b) that can be searched, viewed, or accessed by other users or visitors to the web site, with or without the creator’s permission, consent, invitation, or authorization, and (c) that may permit some form of communication, such as direct comment on the profile page, instant messaging, or email, between the creator of the profile and users who have viewed or accessed the creator’s profile[.]”

“Chat room means a web site or server space on the Internet or communication network primarily designated for the virtually instantaneous exchange of text or voice transmissions or computer file attachments amongst two or more computers or electronic communication device users; . . .

“Instant messaging means a direct, dedicated, and private communication service, accessed with a computer or electronic communication device, that enables a user of the service to send and receive virtually instantaneous text transmissions or computer file attachments to other selected users of the service through the Internet or a computer communications network; . . .

In a thoughtful and well-written opinion, Judge Kopf held that the statute was not “narrowly tailored to serve its purpose of protecting children from those offenders who pose a  risk to them through the use or threatened use of the banned sites or services:

“Whatever else the words of Neb. Rev. Stat. § 28-322.05 might mean, it is undisputed that those words ban the offenders described in the statute from using ubiquitous utilities such as MySpace, Facebook, Skype, Twitter, Windows Live Messenger, and Google+ together with a large number of other utilities.   In order to understand the significance of the ban, it is important to understand the size and overarching presence of “social networking web sites” and “instant messaging” and “chat room” services on the Internet.  This ban precludes the offenders described in the statute from using an enormous portion of the Internet to engage in expressive activity. No reasonable person could deny that fact. The ban not only restricts the exchange of text between adults; it also restricts the exchange of oral and video communication between adults. Moreover, the ban potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors.  The risk posited by the statute is far too speculative when judged against the First Amendment. The broad scope of the ban is a fatal deficiency.”

It was an ugly bit of legislation; putting heavier and heavier  burdens on those who have been convicted of sex crimes (and who have served their prison sentences) seems to be a popular national pastime these days (Russell Banks’ most recent novel, “Lost Memory of Skin,” has an interesting take on this phenomenon), and it strikes me as  vindictive and mean-spirited and cruel.  To tell someone, as Nebraska had done here, that because of your prior conviction you will  never be permitted, in effect, to use the Internet for just about anything — because virtually every social networking site or chat room service out there, however you define them, “allows persons under the age of 18 to access or use [it],” and is therefore off-limits to you — is a crushing blow for someone who might — just might — be trying to put his life back together, and it virtually guarantees that he will not be able to do so.  It has no purpose other than to punish those who have already been punished, and I was very gratified to see that Judge Kopf agreed, and very gratified that I played some part in getting him to agree.