In Harris v. State, 985 N.E.2d 767 (Ind.Ct.App. 2013), the court of appeals held that Ind. Code § 11-8-8-8(a)(7), which requires disclosure of email addresses, instant messaging, and chat room user names that the sex offender registrant uses or intends to use, does not impose a burden on registrant's First Amendment freedom to speak anonymously and does not contravene his right to free expression as guaranteed by Article 1, Section 9 of the Indiana Constitution. This registration requirement does not restrict a defendant's ability to use email, “nor does it limit his use of social networking websites, instant messaging or chat room platforms.”
However, the court also held that Ind. Code § 35-42-4-12, which prohibits registered sex offenders from using social networking websites, instant messaging services, or chat programs that the offender knows allows a person who is less than eighteen years of age to access or use the website or program, is unconstitutional as applied to Harris, who is a sexually violent predator. Though content neutral, the statute is not narrowly tailored to serve the State's legitimate interest in protecting children from harmful online communications. And the State already criminalized illicit expression with minors under child solicitation and inappropriate communication with child statutes. See Doe v. Marion County Prosecutor, 705 F.3d 694 (7th Cir. 2013). The State failed to show that the social networking medium possess qualities allowing the Court to conclude that the substantive evil contemplated by Ind. Code § 35-42-4-12 is created by the medium itself, which would justify a complete ban on expression. Harris, 985 N.E.2d at 880.
The court reversed Harris’ sex offender internet offense but affirmed his conviction for failure to register as a sex offender. Judge Crone, concurring in result with a separate opinion, noted that in Doe, the Seventh Circuit found Ind. Code § 35-42-4-12 unconstitutional on its face and the protections of Indiana Constitution Article 1, Section 9 "are at least equal to if not greater than those of the First Amendment."
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