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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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