Doe v. Prosecutor, Marion Cnty., Ind., 12–2512.

• Decision Date: 23 January 2013
• Docket Number: No. 12–2512.,12–2512.
• Citation: 705 F.3d 694
• Parties: John DOE, Plaintiff–Appellant, v. PROSECUTOR, MARION COUNTY, INDIANA, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

705 F.3d 694

John DOE, Plaintiff–Appellant,

v.PROSECUTOR, MARION COUNTY, INDIANA, Defendant–Appellee.

No. 12–2512.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 27, 2012.

Decided Jan. 23, 2013.

Kenneth J. Falk (argued), Attorney, Indiana Civil Liberties Union, Indianapolis, IN, for Plaintiff–Appellant.

Frances Barrow (argued), Attorney, Office of the Attorney General, Indianapolis, IN, for Defendant–Appellee.

Before FLAUM and TINDER, Circuit Judges, and THARP, District Judge. ^*

FLAUM, Circuit Judge.

A recent Indiana statute prohibits most registered sex offenders from using social networking websites, instant messaging services, 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 communications 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 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 subsequent 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 relationships where the victim and perpetrator are close in age and had a consensual relationship. § 35–42–4–12(a).

B. Procedural Background1. John Doe's Suit

In 2000, Doe was arrested in Marion County and convicted of two counts of child exploitation. Although he 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 incorporated 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 convicted 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. SeeFed.R.Civ.P. 65(a)(2). The parties further agreed no additional discovery was required and there would be no live evidence 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 significant 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 prohibits online solicitation of children as evidence that 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 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 district court concluded by noting the statute furthers the state's “strong interest in ensuring that sex offenders do not place themselves in these potentially dangerous situations.”

On the issue of alternative channels of communication, the district court listed several social network alternatives, 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 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, 91 S.Ct. 1780, 29 L.Ed.2d 284 (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, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); see Procunier v. Martinez, 416 U.S. 396, 408–09, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) (“[T]he addressee as well as the sender of direct personal correspondence derive [ ] from the First and Fourteenth Amendments a protection against unjustified governmental interference with the intended communication.”). The Indiana law, however, is content neutral because it restricts speech without reference to the expression's content. Turner Broadcasting Sys. v. FCC, 512 U.S. 622, 641–42, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). As such, it may impose reasonable “time, place, or manner restrictions.” Clark v. Comm. for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (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, 109 S.Ct. 2746, 105 L.Ed.2d 661 (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, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). In Frisby, the Court upheld an ordinance that prohibited picketing focused on a particular residence. Id. at 477, 108 S.Ct. 2495. The regulation sought to stop a recent pattern of abortion protesters that surrounded abortion doctors' homes. The Court found that the state had a significant interest in protecting “residential privacy,” and a “complete prohibition” was the only way to further this interest. Id. at 484–86, 108 S.Ct. 2495. The Court reasoned that “the evil of targeted residential picketing ... is created by the medium of expression itself.” Id. at 487–88, 108 S.Ct. 2495 (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, 108 S.Ct. 2495. Similarly, in City of Los Angeles v. Taxpayers for Vincent, a city ordinance prohibited posting signs on public property. 466 U.S. 789,...