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Appeals court tackles sex offender use of social media

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Two months after the 7th Circuit Court of Appeals struck down the state’s law prohibiting sex offenders from using certain social media sites, the Indiana Court of Appeals ruled that Indiana Code 35-42-4-12 violates an Elkhart County man’s First Amendment rights.

In Michael L. Harris v. State of Indiana, 20A04-1204-CR-225, convicted sex offender Michael Harris appealed his convictions and sentence for Class D felony failure to register as a sex offender under I.C. 11-8-8-17 and Class A misdemeanor sex offender Internet offense under I.C. 35-42-4-12. Harris is required to register and report for life. After he was released from incarceration, he filled out an offender registration form, but left blank the spaces for “E-mail/Chat room/Instant Messaging/Social Networking Site Names.”

Police later discovered Harris had a MySpace profile and several email addresses. The AOL account used was registered under Harris’ wife’s name and paid for by her. The state then charged Harris with failure to register and a sex offender Internet offense. He claimed the charges should be dismissed based on ex post facto and free speech violations. He was convicted as charged.

The judges rejected Harris’ claim that I.C. 11-8-8-8(a)(7) chills his expression under the First Amendment. They pointed out that disclosure of online identifiers does not “unnecessarily interfere with his First Amendment freedom to speak anonymous,” citing Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010). They also found the state produced sufficient evidence to support Harris’ conviction of failure to register.
 
The COA acknowledged the recent 7th Circuit decision in John Doe v. Prosecutor, Marion County, Indiana, 12-2512, which held the law regulating social media use by sex offenders is unconstitutional, but pointed out the state court isn’t constrained by the federal court’s decision. Judges Patricia Riley and L. Mark Bailey noted that the parties in this case and remedy afforded differ from Doe, but still concluded that the state’s proffered narrow tailoring justifying the law is unsustainable in light of Doe. The law is unconstitutional as applied to Harris.

Judge Terry Crone concurred in result on this issue, writing, “I acknowledge that we are not bound by the Seventh Circuit’s holding and that Doe is both factually and procedurally distinguishable, but I see no reason to reinvent the wheel here and would reverse Harris’s conviction under Indiana Code Section 35-42-4-12 based on Judge Flaum’s persuasive analysis in that case.”

He concurred with the majority on all other matters.

 

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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