Not to beat the dead horse that judges and legislators aren’t on the cutting edge of technology, but when they try to “fix” perceived real world problems, they occasionally fall a tad shy of anything remotely resembling real life. To his enormous credit, Judge Richard Kopf of the District of Nebraska knew better.
Via David Post at Volokh Conspiracy, who humbly notes that he served as the expert witness for the plaintiffs and (self-promoting lawyers, take note) exercised the sound discretion not to post about it until after the decision issued, explains how Nebraska law sought to essentially deprive a laundry list of “sex offenders” access to what is the world today.
The statute made it a crime – ”unlawful use of the Internet by a prohibited sex offender” — for any person who was required to register with the federal Sex Offender Registry because of a prior conviction for one of a series of enumerated sex offenses (e.g., sexual assault of a child, “pandering” of a minor, child pornography, or criminal child enticement) to:
“knowingly and intentionally [use] a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use [it].”
The argument in favor of keeping sex offenders as far away from children as possible certainly has widespread appeal, Frankly, there aren’t many folks who would lose sleep if anyone remotely tainted by sex offender status was shipped off to an island in the middle of the ocean and left there to rot. Don’t bother to argue the point that these aren’t all horrible monsters; they just don’t care.
Judge Kopf, on the other hand, got it.
Whatever else the words of Neb. Rev. Stat. § 28-322.05 might mean, it is undisputed that those words ban the offenders described in the statute from using ubiquitous utilities such as MySpace, Facebook, Skype, Twitter, Windows Live Messenger, and Google+ together with a large number of other utilities. In order to understand the significance of the ban, it is important to understand the size and overarching presence of “social networking web sites” and “instant messaging” and “chat room” services on the Internet. This ban precludes the offenders described in the statute from using an enormous portion of the Internet to engage in expressive activity. No reasonable person could deny that fact. The ban not only restricts the exchange of text between adults; it also restricts the exchange of oral and video communication between adults. Moreover, the ban potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors. The risk posited by the statute is far too speculative when judged against the First Amendment. The broad scope of the ban is a fatal deficiency.
Is it possible that while roaming the internet, a despicable person will come across a vulnerable child and engage in conduct that makes good people wretch? Well, yeah, it’s possible, and to those who elevate their own safety at the expense of the rights of others, this law likely seems eminently reasonable. After all, these are sex offenders. Who cares what happens to them if it means my babies will be safer.
But in the process of achieving speculative safety, the loss to a person who has completed his sentence, paid his debt to society, and returned in the hope (and with the expectation) of leading a law-abiding life, can’t make it an impossibility. David explains:
To tell someone, as Nebraska had done here, that because of your prior conviction you will never be permitted, in effect, to use the Internet for just about anything — because virtually every social networking site or chat room service out there, however you define them, “allows persons under the age of 18 to access or use [it],” and is therefore off-limits to you — is a crushing blow for someone who might — just might — be trying to put his life back together, and it virtually guarantees that he will not be able to do so. It has no purpose other than to punish those who have already been punished.
No doubt there will be many who just couldn’t care less about those horrible sex offenders. That’s pretty much been the reaction to every burden placed on them, even to the point of forcing them to live under a bridge because there is no place in a town that’s sufficiently far away from a school or park to allow them to comply with absurd local laws. They are chased out of town, to the applause of parents who only want to be rid of them.
Notwithstanding Judge Kopf’s slightly embarrassing inclusion of MySpace in his list of really cool places on the interwebz (bear in mind it is Nebraska, and it takes a while for the internet to reach there), the decision recognizes that the internet today is as integral to life as breathing. It is our world, for better or worse, and to prohibit anyone from access to the web is akin to ordering them to suffocate.
No doubt there are many who will find both the decision, and this post, patently offensive, believing that there is no harm that can be done to a sex offender that compares to the harm they do to others. But this isn’t about comparing harms, about which there’s no reason to fight. Once a person has served his sentence, he must be allowed back into society or his sentence is never served and he will be left with no option but to engage in crime to survive. You just can’t order a person to live a law-abiding life but not breath.