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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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