Are Social Media Laws for Sex Offenders Unconstitutional?

In 2012 Louisiana became the first state to require by law that sex offenders openly post their status as such on any social media profile, such as Facebook, Twitter, or LinkedIn. This law may be an unconstitutional violation of sex offenders’ First Amendment right to free speech.

The law mandates that a sex offender or child predator “shall include in his profile for the networking website an indication that he is a sex offender or child predator and shall include notice of the crime for which he was convicted, the jurisdiction of conviction, a description of his physical characteristics, and his residential address.” The law is an expansion of previous registration requirements that compel persons convicted of sex crimes to provide their names, addresses, crimes, and photographs to local police and nearby schools and parks.

The penalty for failing to provide information about past convictions is up to ten years in imprison with hard labor and no parole, and up to a $1,000 fine. A second conviction could result in twenty years in prison with hard labor and no parole, and a $3,000 fine.

Before the 2012 law was passed, this registration process involved only direct mail and public notice in the local newspaper and included no online component. But this is not the first time a state has attempted to limit sex offenders’ free speech by restricting internet use.

A previous law prohibited registered sex offenders convicted in crimes involving children from “using or accessing of social networking websites, chat rooms, and peer-to-peer networks.” A district court struck down this law because it found that the law created “a near total ban on Internet access” and “imposed severe and unwarranted restraints on constitutionally protected speech.” The court especially noted that the definition of “chat room” in the previous law was broad enough to include the court system’s own website.

The American Civil Liberties Union has attempted to block enforcement of state laws that limit sex offenders’ use of the internet, arguing that it infringes their constitutional rights. The group is also likely to attack the 2012 statute for its attempts to limit offenders’ freedom of speech online, as well as laws in other states which using other methods to infringe free speech rights of offenders. In 2013, the U.S. Court of Appeals for the Seventh Circuit overturned an Indiana statute banning sex offenders from using social media websites like Facebook because it violated the First Amendment right to free speech.

Lawmakers in Olympia have not enacted any such law in Washington State, where sex offenders are free to use social media in a lawful manner without posting any disclosure about their status as sex offenders. RCW 9A.44.130 details the other registry requirements mandated by Washington law, such as registration with the county sheriff, providing: (1) name; (2) residential address; (3) date and place of birth; (4) place of employment; (5) crime for which convicted; (6) date and place of conviction; (7) social security number; (8) photograph; and (9) fingerprints.