MySpace, Yourspace, but Not Theirspace: The Constitutionality of Banning Sex Offenders from Social Networking Sites

By Wynton, Jasmine S. | Duke Law Journal, May 2011 | Go to article overview
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MySpace, Yourspace, but Not Theirspace: The Constitutionality of Banning Sex Offenders from Social Networking Sites


Wynton, Jasmine S., Duke Law Journal


ABSTRACT

In recent years there has been intense public pressure to enact increasingly restrictive and intrusive sex offender laws. The regulation of sex offenders has now moved online, where a growing amount of protected expression and activity occurs. The latest trend in sex offender policy has been the passage of state laws prohibiting sex offenders from visiting social networking sites, such as Myspace or Facebook. The use of these websites implicates the First Amendment right of expressive association. Broad social-networking-site bans threaten the First Amendment expressive association rights of sex offenders, who do not lose all of their constitutional rights by virtue of their conviction. Although social-networking-site bans are politically attractive on the surface, such prohibitions are fundamentally flawed because they are predicated on a number of widespread misconceptions about sex offenses and sex offender behavior. These misconceptions include the beliefs that all registered sex offenders are violent sexual predators who have extremely high recidivism rates and that Internet predators are increasing the incidence of sex crimes against minors. In fact, there is very little evidence to indicate that this type of legislation will help reduce sexual violence. This Note argues for empirically based and narrowly tailored sex offender policies that will strike the appropriate balance between protecting minors from sexual abuse and respecting sex offenders' constitutional rights. Such an approach is more likely to help rehabilitate offenders and thus protect children and others from sexual predators.

INTRODUCTION

The rise in popularity among youth of social networking sites such as Twitter, Facebook, and Myspace has increased public concern over the dangers that sexual predators pose online. Television programs such as Dateline's To Catch a Predator (1) and high-profile incidents of Internet-related sex crimes have generated fears that minors on such sites are increasingly at "high risk of assault by repeat sex offenders." (2) Eager to protect potential victims from online predators, legislators have enacted measures to promote child safety on the web. These measures include laws regulating minors' access to harmful content online; (3) laws requiring sex offenders to register their Internet identities; (4) and, in the latest wave of legislation, laws prohibiting registered sex offenders from using social networking sites. (5)

Social networking sites have changed the way Americans communicate, share ideas, learn information, and organize themselves. No longer confined to personal social uses, these sites now also serve as accessible platforms for political and social organization. Given these expanding uses, courts should consider the implications of broad social-networking-site bans on sex offenders' right of expressive association.

This Note argues that recent legislation banning sex offenders from social networking sites impermissibly restricts sex offenders' First Amendment right to freedom of association, and that it represents poor public policy. Part I examines federal courts' treatment of computer and Internet bans as a special condition of supervised release for sex offenders in child pornography cases. (6) It also examines the development of state legislation imposing Internet and social-networking-site bans. Part II explores how social networking sites are changing the contours of the right of expressive association and argues that these sites warrant First Amendment protection. Part III discusses the constitutional status of sex offenders, including offenders on probation or parole and those who have completed their sentences. Part IV addresses the constitutional issues raised by social-networking-site bans and the policy concerns with such bans, highlighting the ways in which these bans are inconsistent with the available empirical evidence on sexual violence and sex offender behavior.

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MySpace, Yourspace, but Not Theirspace: The Constitutionality of Banning Sex Offenders from Social Networking Sites
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