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Experts: Recast Indiana sex offender social-media bill unconstitutional

Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. The Associated Press
Wednesday, January 30, 2013 - 7:05 pm

INDIANAPOLIS — A bill rewriting an overturned Indiana law banning sex offenders from social networking sites is just the same tiger wearing new stripes, legal experts said Wednesday.

The 7th U.S. Circuit Court of Appeals in Chicago last week overturned a federal judge's decision upholding the 2008 law, saying the state was justified in trying to protect children, but that the "blanket ban" was too broad.

Two Republican senators introduced the rewritten ban earlier in the legislative session, but it was amended into a separate bill that a committee took under advisement Tuesday.

The bill's backers believe their changes should satisfy the court. But critics say the new version is still unconstitutional because it would virtually ban offenders from using social media, even if they don't try to directly contact children and their past crimes had nothing to do with the Internet.

"It applies to any site that a person knowingly uses and knows that minors are allowed access," said Ruthann Robson, a professor of constitutional law at the City University of New York. She said that would completely ban sex offenders from using Facebook, since kids also are allowed to access it.

"There is not even a provision that the person "friend" or have contact with the minor," Robson said.

But legislators backing the bill said they believe the rewritten proposal falls within the guidelines set by the appellate court ruling.

A bill filed earlier this year by Sen. Jim Merritt, R-Indianapolis, and Sen. John Waterman, R-Shelburn, would ban Class A felony child molesters and sex offenders convicted of child solicitation from sites such as Facebook. Merritt said he believed tailoring the bill to apply to the "worst we have" would be narrow enough to satisfy the court.

"We make it illegal to commit robbery or murder with a gun, but we also have laws that make it illegal for a felon to possess a gun," Merritt said Wednesday. "We do not want to give these convicted sex offenders the same tools to reoffend."

Larry Landis, executive director of the Indiana Public Defender Council, said he advised legislators that the proposal still needed work. He said most of the changes in the proposal shorten the list of offenders who would be banned, rather than narrowing free speech restrictions.

"This is not a good constitutional fix. I think they either misunderstood or misread the 7th Circuit opinion," Landis said.

The Senate Committee on Corrections and Criminal Law on Tuesday merged the bill with another one authored by Sen. Randy Head, R-Logansport, which would increase the penalty for child solicitation if the offender uses a computer network and travels to meet the child.

Committee Chairman Mike Young, R-Indianapolis, said legislators' concern was that the earlier version of the rewritten ban was worded so that it would allow a sex offender to communicate with a child under 18 on the Internet if the parents gave their child permission. He said lawmakers wanted to close that gap.

Young, an attorney, said the new ban wouldn't apply to websites for adults, such as dating sites.

"Only the sites that we know that kids frequent," he said. "That narrows it down so it just doesn't give all social networking sites."

Ken Falk, legal director for the American Civil Liberties Union of Indiana, questioned whether the ban was even necessary because Indiana law already includes harsher penalties for those who solicit children online.

Landis said he understood that lawmakers "feel an obligation" to do something about sexual predators, but passing a law that is liable to be struck down is counterproductive. Regardless, he said he expects the bill to pass.

Head said lawmakers need to take their time with the wording.

"We can't have these things overturned," he said. "We have to make this stick."