Citing Supreme Court Ruling, Judge Lets Kentucky Sex Offenders Back on Facebook

by | October 24, 2017

By John Cheves

Kentucky's registered sex offenders have the constitutional right to use Facebook, Twitter and other online social media, a federal judge ruled Friday.

Ruling in a lawsuit brought by a Lexington child pornography defendant identified only as "John Doe," U.S. District Judge Gregory Van Tatenhove struck down Kentucky's sweeping restrictions on internet access for registered sex offenders.

"This is a very important decision," said Scott White, a Lexington attorney who represented Doe. "The laws effectively deprived anyone on the sex offender registry of access to the most effective forms of communication that we have today. It was a complete suppression of speech."

One law prohibited sex offenders from using social networking websites or instant messaging or chat rooms that potentially could be "accessible" to children -- which is to say, much of the internet. The other law required sex offenders to keep their probation or parole officers updated on all of their email addresses and various online identities.

Van Tatenhove cited a unanimous decision by the U.S. Supreme Court in June that struck down a similar North Carolina ban on social media for sex offenders, in part because so many civic institutions -- from elected officials to news media -- are now tied into social media.

For example, the Herald-Leader's Kentucky.com website would be off-limits to sex offenders under the state's ban because it has a comments section open to the public, Van Tatenhove wrote.

Kentucky's law "burdens substantially more speech than necessary to further the commonwealth's legitimate interests in protecting children from sexual abuse solicited via the Internet," Van Tatenhove wrote.

"Indeed, rather than prohibiting a certain type of conduct that is narrowly tailored to prevent child abuse, the statute prevents Mr. Doe and others similarly situated from accessing what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge," he wrote.

In 2015, Doe sued Fayette County prosecutors and the state's Justice and Public Safety Cabinet to challenge the internet access restrictions, arguing that they violated his First Amendment right to free speech and his Fourteenth Amendment right to due process under the law.

Doe said he was convicted in 2007 of one count of possessing child pornography. As a result, he must register his home address with authorities as a known sex offender on a list that is publicly available.

Two years later, Gov. Steve Beshear signed into law the restrictions on the use of social media. Violating those restrictions could have led to a misdemeanor conviction and jail time.

Doe's suit said Kentucky's laws were "so overly broad" that a sex offender looking for employment at LinkedIn.com, following the news on CNN.com or checking out his congressman's Twitter feed could get in trouble, because all of those sites are open to the public and allow for interactions with others.

Attorneys for the Justice Cabinet were reviewing the decision Friday, a spokesman said. The Fayette Commonwealth's attorney's office did not immediately respond to a request for comment.

At a court hearing in December 2015, lawyers for the state of Kentucky and Fayette County told Van Tatenhove that the social media ban was a narrow restriction that should be considered constitutional.

"It is to prevent sex offenders from meeting adolescents," Matthew Johnson, an attorney for the Justice Cabinet, told the judge. "I believe the commonwealth has decided it, and the commonwealth has decided it based on feedback from the constituents that they represent and their analytical approach to drafting the legislation."

However, the judge said Kentucky's social media ban effectively blocked most of the internet.

"You're really making the playground argument," Van Tatenhove told the lawyers. "If you've got a site that's like the playground, caters to minors, then that's when this is implicated. I don't see that in this statute, though. What I see is 'available to minors,' which seems really broad to me. Almost any site is available to minors."

"I go online looking for rare bourbon, and I go on these sites where I have to put in my birth date," he continued. "But anybody can put in a birth date. That site's available to minors."

(c)2017 the Lexington Herald-Leader (Lexington, Ky.)