Case: 1:12-cv-62 As of: 01/20/2019 12:12 PM EST 1 of 6
MANDATE,CLOSED
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:12−cv−00062−TWP−MJD

DOE v. PROSECUTOR, MARION COUNTY, INDIANA Assigned to: Judge Tanya Walton Pratt Referred to: Magistrate Judge Mark J. Dinsmore Case in other court: 7th Circuit, 12−02512 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 01/17/2012 Date Terminated: 03/28/2013 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

JOHN DOE on his own behalf and on behalf of those similarly situated

represented by Kenneth J. Falk ACLU OF INDIANA 1031 E. Washington Street Indianapolis, IN 46202 (317) 635−4059 x104 Fax: (317) 635−4105 Email: kfalk@aclu−in.org ATTORNEY TO BE NOTICED

V.
Defendant
PROSECUTOR, MARION COUNTY, INDIANA in his official capacity

represented by David A. Arthur OFFICE OF THE ATTORNEY GENERAL 302 West Washington Street IGCS − 5th Floor Indianapolis, IN 46204 (317)232−6286 Fax: (317) 232−7979 Email: David.Arthur@atg.in.gov ATTORNEY TO BE NOTICED
Kate E. Shelby INDIANA ATTORNEY GENERAL 302 West Washington Street, Indiana Government Center South Fifth Floor Indianapolis, IN 46204 232−6304 ATTORNEY TO BE NOTICED

Date Filed 01/17/2012
01/17/2012 01/17/2012 01/17/2012 01/18/2012

# Docket Text
1 COMPLAINT against CITY OF INDIANAPOLIS, INDIANA, PROSECUTOR, MARION COUNTY, INDIANA, filed by JOHN DOE. (Attachments: # 1 Civil Cover Sheet, # 2 Receipt)(JD) (Entered: 01/17/2012)
2 Summons Issued as to CITY OF INDIANAPOLIS, INDIANA; PROSECUTOR, MARION COUNTY, INDIANA. (JD) (Entered: 01/17/2012)
3 NOTICE of Appearance by Kenneth J. Falk on behalf of Plaintiff JOHN DOE. (JD) (Entered: 01/17/2012)
4 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (JD) (Entered: 01/17/2012)
5 NOTICE of Challenge to Constitutionality of State Statute, filed by Plaintiff JOHN DOE (Falk, Kenneth) (Entered: 01/18/2012)

Case: 1:12-cv-62 As of: 01/20/2019 12:12 PM EST 2 of 6

01/18/2012 01/18/2012 01/18/2012 01/18/2012 02/01/2012 02/01/2012 02/03/2012 02/03/2012 02/03/2012 02/03/2012 02/06/2012 02/06/2012 02/06/2012 02/08/2012
02/09/2012
02/13/2012 02/13/2012

6 MOTION to Proceed by Anonymous Name and Motion to Seal Affidavit Containing Actual Name, filed by Plaintiff JOHN DOE. (Attachments: # 1 Affidavit John Doe, # 2 Text of Proposed Order)(Falk, Kenneth) (Entered: 01/18/2012)
7 BRIEF/MEMORANDUM in Support re 6 MOTION to Proceed by Anonymous Name and Motion to Seal Affidavit Containing Actual Name , filed by Plaintiff JOHN DOE. (Falk, Kenneth) (Entered: 01/18/2012)
8 MOTION to Certify Class , filed by Plaintiff JOHN DOE. (Falk, Kenneth) (Entered: 01/18/2012)
9 BRIEF/MEMORANDUM in Support re 8 MOTION to Certify Class , filed by Plaintiff JOHN DOE. (Falk, Kenneth) (Entered: 01/18/2012)
10 NOTICE of Appearance by David A. Arthur on behalf of Defendant PROSECUTOR, MARION COUNTY, INDIANA. (Arthur, David) (Entered: 02/01/2012)
11 NOTICE of Appearance by Kate E. Shelby on behalf of Defendant PROSECUTOR, MARION COUNTY, INDIANA. (Shelby, Kate) (Entered: 02/01/2012)
12 NOTICE of Parties' First Extension of Time, filed by Defendant PROSECUTOR, MARION COUNTY, INDIANA. (Arthur, David) (Entered: 02/03/2012)
13 Unopposed MOTION for Extension of Time to to file response to 8 MOTION to Certify Class , filed by Defendant PROSECUTOR, MARION COUNTY, INDIANA. (Attachments: # 1 Text of Proposed Order)(Arthur, David) (Entered: 02/03/2012)
14 RETURN of Service by CMRRR, filed by JOHN DOE. CITY OF INDIANAPOLIS, INDIANA served on 1/20/2012. (Falk, Kenneth) (Entered: 02/03/2012)
15 RETURN of Service by CMRRR, filed by CITY OF INDIANAPOLIS, INDIANA. PROSECUTOR, MARION COUNTY, INDIANA served on 1/20/2012. (Falk, Kenneth) (Entered: 02/03/2012)
16 NOTICE of Appearance by Justin F. Roebel on behalf of Defendant CITY OF INDIANAPOLIS, INDIANA. (Roebel, Justin) (Entered: 02/06/2012)
17 NOTICE of Parties' First Extension of Time, filed by Defendant CITY OF INDIANAPOLIS, INDIANA. (Roebel, Justin) (Entered: 02/06/2012)
18 NOTICE of Appearance by Alexander Phillip Will on behalf of Defendant CITY OF INDIANAPOLIS, INDIANA. (Will, Alexander) (Entered: 02/06/2012)
19 SCHEDULING ORDER: Hearing on Plaintiff's Motion to Proceed by Anonymous name and Motion to Seal Affidavit containing Actual Name [Dkt. 6] and Unopposed Motion for Extension of Time to File Response to Motion to Certify Class [Dkt. 13] set for 2/21/2012 09:45 PM in room #243, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. Initial Pretrial Conference set for 2/21/2012 09:00 AM in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. The parties shall file a proposed Case Management Plan ("CMP") no fewer than seven days before the pretrial conference (see Order for additional information). Signed by Magistrate Judge Mark J. Dinsmore on 2/8/2012.(SWM) (Entered: 02/08/2012)
20 CASE MANAGEMENT PLAN TENDERED, filed by Plaintiff JOHN DOE and Defendants by CITY OF INDIANAPOLIS, INDIANA; PROSECUTOR, MARION COUNTY, INDIANA . (Falk, Kenneth) Added Defendants as filers on 2/10/2012 (JD). (Entered: 02/09/2012)
21 MOTION for Continuance of initial pretrial conference and hearings on pending motions, filed by Defendant PROSECUTOR, MARION COUNTY, INDIANA. (Attachments: # 1 Text of Proposed Order)(Arthur, David) (Entered: 02/13/2012)
22 SCHEDULING ORDER: Before the Court is Defendant Prosecutor's Motion to Continue the Initial Pretrial Conference and Hearings on Pending Motions 21 . This motion is hereby GRANTED IN PART AND DENIED IN PART. This matter is currently set for an initial pretrial conference on February 21, 2012 at 9:00 a.m. and a hearing on Plaintiff's Motion to Proceed By Anonymous Name and Motionto Seal Affidavit Containing Actual Name [Dkt. 6] and Defendant Prosecutor of Marion

Case: 1:12-cv-62 As of: 01/20/2019 12:12 PM EST 3 of 6

02/23/2012 02/23/2012
02/24/2012 02/27/2012
02/27/2012 02/27/2012 02/28/2012 03/02/2012 03/02/2012 03/02/2012 03/06/2012 03/14/2012 03/14/2012 03/14/2012

County's Unopposed Motion for Extension of Time to File Response to Motion to Certify Class [Dkt. 13] at 9:45. The Court hereby changes the start time of the initial pretrial conference to 9:30 a.m. and the hearing to 10:00 a.m. All other requirements of the Court's Orders dated 2/8/12 [Dkt. 19] are still in order and effect. Signed by Magistrate Judge Mark J. Dinsmore on 2/13/2012.(SWM) (Entered: 02/13/2012)
23 ORDER granting Deft Prosecutor, Marion County, Indiana's 13 Motion for Extension of Time to File Response to 3/6/2012 re 8 MOTION to Certify Class . Signed by Magistrate Judge Mark J. Dinsmore on 2/23/2012. (SWM) (Entered: 02/23/2012)
24 Minute Entry for proceedings held before Magistrate Judge Mark J. Dinsmore: Initial Pretrial Conference held on 2/21/2012. The Court will approve the Case Management Plan, by separate order, with the changes to which the parties have agreed. The parties further discussed the pending motions. The Court will Grant, by separate Order, Defendants' Motion for Extension of Time to Respond to the Motion to Certify Class [Dkt. 13]. Status Conference set for 3/27/2012 03:00 PM in Telephonic before Magistrate Judge Mark J. Dinsmore. The purpose of this conference is to discuss case status. Counsel shall attend the status conference by calling the designated phone number, to be provided by the court via email. Signed by Magistrate Judge Mark J. Dinsmore.(SWM) (Entered: 02/24/2012)
25 ORDER: CASE MANAGEMENT PLAN APPROVED AS AMENDED. Dispositive Motions due by 12/4/2012. Signed by Magistrate Judge Mark J. Dinsmore on 2/24/2012.(SWM) (Entered: 02/24/2012)
26 ORDER granting Pltf's 6 Motion to Proceed by Anonymous Name and Motion to Seal Affidavit Containing Actual Name. Pltf's counsel shall file the affidavit of Pltf, signed in his actual name, under seal with the Clerk of this Court (see Order for additional information). Signed by Magistrate Judge Mark J. Dinsmore on 2/27/2012. (SWM) (Entered: 02/27/2012)
27 SEALED Affidavit of "John Doe" in his actual name, filed by Plaintiff JOHN DOE. (Falk, Kenneth) (Entered: 02/27/2012)
28 STIPULATION of Dismissal of Defendant City of Indianapolis, filed by Defendants CITY OF INDIANAPOLIS, INDIANA, PROSECUTOR, MARION COUNTY, INDIANA, Plaintiff JOHN DOE. (Falk, Kenneth) (Entered: 02/27/2012)
29 Stipulation of Dismissal − The City of Indianapolis is DISMISSED as a Party to this suit, with each party to pay its own costs and attorneys fees. Signed by Judge Tanya Walton Pratt on 2/28/2012.(JD) (Entered: 02/28/2012)
30 RESPONSE to Motion re 8 MOTION to Certify Class , filed by Defendant PROSECUTOR, MARION COUNTY, INDIANA. (Arthur, David) (Entered: 03/02/2012)
31 ANSWER to 1 Complaint , filed by PROSECUTOR, MARION COUNTY, INDIANA.(Arthur, David) (Entered: 03/02/2012)
32 Submission of Proposed Order (Agreed), re 8 MOTION to Certify Class , filed by Plaintiff JOHN DOE. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 03/02/2012)
33 ORDER granting 8 Motion to Certify Class. Signed by Judge Tanya Walton Pratt on 3/6/2012. (JD) (Entered: 03/06/2012)
34 MOTION for Preliminary Injunction , filed by Plaintiff JOHN DOE. (Attachments: # 1 Affidavit John Doe (2nd Aff), # 2 Affidavit Fred Cate, # 3 Text of Proposed Order)(Falk, Kenneth) (Entered: 03/14/2012)
35 BRIEF/MEMORANDUM in Support re 34 MOTION for Preliminary Injunction , filed by Plaintiff JOHN DOE. (Falk, Kenneth) (Entered: 03/14/2012)
36 SCHEDULING ORDER − Having approved the Case Management Plan as amended, the Court hereby sets the Final Pretrial Conference for Wednesday, August 21, 2013, at 9:00 a.m., in Room 330, and the Bench Trial to begin on Monday, September 9, 2013, at 9:00 a.m., in Courtroom 344, Birch Bayh Federal Building and United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana. Signed by Judge Tanya Walton

Case: 1:12-cv-62 As of: 01/20/2019 12:12 PM EST 4 of 6

03/14/2012 03/15/2012 03/29/2012
04/05/2012 04/16/2012 05/02/2012 05/03/2012 05/03/2012
05/11/2012 05/17/2012 05/18/2012 05/21/2012 05/23/2012

Pratt on 3/14/2012.(JD) (Entered: 03/14/2012)
37 TRIAL PROCEDURES AND PRACTICES before Judge Tanya Walton Pratt. (JD) (Entered: 03/14/2012)
38 SCHEDULING ORDER − This matter is set for a Preliminary Injunction Hearing on 4/13/2012 at 9:00 a.m. in room #344, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana. Parties are allotted one hour, thirty minutes each side. Signed by Judge Tanya Walton Pratt on 3/15/2012.(JD) (Entered: 03/15/2012)
40 Minute Entry for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 3/27/2012. This matter is currently scheduled for a hearing on Plaintiff's motion for preliminary injunction at 9:00 a.m. on 4/13/2012. [Dkt. 34, 38.] Due to a scheduling conflict, counsel for Defendant is unable to respond to the motion as presently scheduled. Accordingly, Defendant orally moved to continue the hearing on the motion for preliminary injunction and the schedule for the briefing of that motion, which request Plaintiff does not oppose. The hearing on Plaintiff's motion for preliminary injunction scheduled to begin at 9:00 a.m. on April 13, 2012 is hereby VACATED and is rescheduled to begin at 9:00 a.m. on May 31, 2012 in Room 344, United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana. The parties are allotted ninety minutes per side for the presentation of evidence and argument. The Court will conduct a telephonic conference at 3:00 p.m. on May 18, 2012 to discuss preparations for the hearing on the merits of this matter and to address any issues the parties may have in advance of that hearing. Counsel shall attend the conference by calling the designated phone number, be provided by the Court via email generated by the Court's ECF system (see Order for additional information and briefing schedule). Signed by Magistrate Judge Mark J. Dinsmore.(SWM) (Entered: 03/30/2012)
41 NOTICE of Filing of Additional Affidavit in Support of 34 Motion for Preliminary Injunction and All Other Relief, filed by All Plaintiffs (Attachments: # 1 Affidavit Geertsema−Sligh, # 2 CV−Geertsema−Sligh) (Falk, Kenneth) Added document link on 4/6/2012 (JD). (Entered: 04/05/2012)
42 TRIAL BRIEF by All Plaintiffs. (Falk, Kenneth) (Entered: 04/16/2012)
43 Unopposed MOTION for Extension of Time to May 11, 2012 to file response to 34 MOTION for Preliminary Injunction and to plaintiffs' trial brief 42 , filed by Defendant PROSECUTOR, MARION COUNTY, INDIANA. (Attachments: # 1 Text of Proposed Order)(Arthur, David) (Entered: 05/02/2012)
44 NOTICE of Service of Initial Disclosures , filed by Plaintiff JOHN DOE. (Falk, Kenneth) (Entered: 05/03/2012)
45 ORDER granting 43 Motion for Extension of Time − The time for the defendant to file a response to the motion for preliminary injunction and trial brief is hereby enlarged to May 11. The time within which plaintiffs may file their reply is hereby enlarged to May 25. The remainder of the minute entry for March 27, 2012, status conference, including the May 18 telephonic status conference, remains in full force and effect. Signed by Judge Tanya Walton Pratt on 5/3/2012. (JD) (Entered: 05/03/2012)
47 TRIAL BRIEF by PROSECUTOR, MARION COUNTY, INDIANA. (Arthur, David) (Entered: 05/11/2012)
48 TRIAL BRIEF −REPLY− by All Plaintiffs. (Falk, Kenneth) (Entered: 05/17/2012)
49 **PLEASE DISREGARD, FILED IN THE WRONG CASE** NOTICE of Service of Initial Disclosures (Belated), filed by Plaintiff JOHN DOE. (Falk, Kenneth) Modified on 5/18/2012 (JD). (Entered: 05/18/2012)
50 Minute Entry for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephone Status Conference held on 5/18/2012. (See Entry for details.) Signed by Magistrate Judge Mark J. Dinsmore. (TMA) (Entered: 05/21/2012)
51 ENTRY REGARDING ROOM CHANGE − The hearing on Plaintiffs' Motion for Preliminary Injunction (Dkt. 34 ) and the merits of this action is scheduled to commence on May 31, 2012 at 9:00 a.m. in Courtroom 349, Birch Bayh Federal Building and United States Courthouse, Indianapolis, Indiana. Please make note of this

Case: 1:12-cv-62 As of: 01/20/2019 12:12 PM EST 5 of 6

05/31/2012
06/22/2012
06/22/2012
06/26/2012 06/27/2012 06/27/2012 06/27/2012 06/27/2012 06/28/2012 06/29/2012 07/10/2012 07/10/2012
10/24/2012 10/24/2012 03/07/2013
03/07/2013

change. Signed by Judge Tanya Walton Pratt on 5/23/2012.(JD) (Entered: 05/23/2012)
52 Minute Entry for Oral Argument re 34 MOTION for Preliminary Injunction held before Judge Tanya Walton Pratt on 5/31/2012 − Parties appeared by counsel. Argument is heard regarding the pending motion for preliminary injunction. The Court takes the motion under advisement and will issue a ruling within thirty days. Signed by Judge Tanya Walton Pratt. (Court Reporter David Moxley.)(JD) (Entered: 05/31/2012)
53 ENTRY FOLLOWING BENCH TRIAL ON THE MERITS − For the above reasons, the Court DENIES Mr. Doe's Motion for Preliminary Injunction and his request for permanent relief in the form of a declaratory judgment and a permanent injunction. (Dkt. Nos. 34 and 42 ) Final judgment in favor of the State will accompany this entry. Signed by Judge Tanya Walton Pratt on 6/22/2012. (JD) (Entered: 06/22/2012)
54 CLOSED JUDGMENT − After conducting a bench trial on the merits, the Court has denied Plaintiff, John Doe's Motion for Preliminary Injunction and request for permanent relief to enjoin enforcement of Indiana Code Indiana Code § 35−42−4−12 and ruled in favor of Defendant Prosecutor, Marion County, Indiana. The Court now enters final JUDGMENT in favor of Defendant. Signed by Judge Tanya Walton Pratt on 6/22/2012.(JD) (Entered: 06/22/2012)
55 NOTICE OF APPEAL as to 54 Closed Judgment, filed by Plaintiff JOHN DOE. (Falk, Kenneth) (Entered: 06/26/2012)
56 SEVENTH CIRCUIT APPEAL INFORMATION SHEET re 55 Notice of Appeal − Instructions for Attorneys − Parties' Short Record, Instructions, and Designation of Record information attached. (TMA) (Entered: 06/27/2012)
57 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 55 Notice of Appeal. − for Court of Appeals Use Only. (TMA) (Entered: 06/27/2012)
58 USCA Case Number 12−2512 for 55 Notice of Appeal filed by JOHN DOE. (Attachments: # 1 Circuit Rule 3(b) Notice) (TMA) (Entered: 06/27/2012)
59 USCA Appeal Fees received $ 455 receipt number IP030494 re 55 Notice of Appeal filed by JOHN DOE. (cc: USCA re: CA #12−2512.) (TMA) (Entered: 06/27/2012)
60 SEVENTH CIRCUIT TRANSCRIPT INFORMATION SHEET by All Plaintiffs for proceedings held on May 31, 2012 (partial transcript) before Judge Hon. Tonya Walton Pratt, re 55 Notice of Appeal (Falk, Kenneth) (Entered: 06/28/2012)
61 DESIGNATION of Record on Appeal by JOHN DOE, PROSECUTOR, MARION COUNTY, INDIANA re 55 Notice of Appeal (Attachments: # 1 Civil Docket− Marked)(Falk, Kenneth) (Entered: 06/29/2012)
62 NOTICE of FILING of OFFICIAL TRANSCRIPT of Excerpt of Hearing held before Judge Tanya Walton Pratt on 05/31/2012 (Moxley, David) (Entered: 07/10/2012)
63 TRANSCRIPT of Excerpt of Hearing held on 05/31/2012 before Judge Tanya Walton Pratt. (4 pages.) Court Reporter/Transcriber: David Moxley (Telephone: (317) 916−8209). Please review Local Rule 80−2 for more information on redaction procedures. Redaction Statement due 7/31/2012. Release of Transcript Restriction set for 10/9/2012. (Moxley, David) Released on 10/9/2012 (SWM). (Entered: 07/10/2012)
64 Certified and Transmitted Record on Appeal to US Court of Appeals, via email, re 55 Notice of Appeal. (TMA) (Entered: 10/24/2012)
65 Appeal Remark re 55 Notice of Appeal : Long record received and docketed by the USCA. (TMA) (Entered: 10/24/2012)
66 MANDATE of USCA as to 55 Notice of Appeal filed by JOHN DOE − We REVERSE, with costs, the district court's decision, and REMAND with instructions to enter judgment in favor of Doe and issue the injunction. The above is in accordance with the decision of this court entered on this date. (TMA) (Entered: 03/07/2013)
67 ORDER − This matter is before the Court regarding the Mandate (Dkt. 66 ) issued by the United States Court of Appeals, for the Seventh Circuit, which remanded this case for further proceedings. In accordance with Local Rule 16−2, parties shall file their position statement on or before March 29, 2013. Additionally, the Clerk of the Court is

Case: 1:12-cv-62 As of: 01/20/2019 12:12 PM EST 6 of 6

03/26/2013 03/26/2013 03/28/2013 03/28/2013
04/17/2013 04/18/2013 05/22/2013 05/23/2013 06/07/2013

directed to reopen this case. Signed by Judge Tanya Walton Pratt on 3/7/2013.(JD) (Entered: 03/08/2013)
68 Unopposed MOTION for Extension of Time to 30 days after entry of Judgment to File for Attorney's Fees and Costs, filed by Plaintiff JOHN DOE. (Falk, Kenneth) (Entered: 03/26/2013)
69 NOTICE of Filing Joint Position Statement by All Parties (Attachments: # 1 Proposed Final Judgment) (Falk, Kenneth) (Entered: 03/26/2013)
70 ORDER granting 68 Plaintiff's Unopposed Motion to Extend Time to File for Attorney's Fees and Costs. Plaintiffs shall have thirty days from this date to file any motion for attorneys' fees and costs. Signed by Judge Tanya Walton Pratt on 3/28/2013. (JD) (Entered: 03/28/2013)
71 CLOSED JUDGMENT − Indiana Code § 35−42−4−12 is unconstitutional as violating the First Amendment to the United States Constitution, and, IT IS ORDERED that Judgment is entered in favor of the plaintiff class, all Marion County residents required to register as sex or violent offenders pursuant to Indiana law who are not subject to any form of supervised release and who are sexually violent predators under Indiana law or who have been convicted of one or more of the offenses listed in Indiana Code § 35−42−4−12(b)(2) and who are not within the statutory exceptions noted in Indiana Code § 35−42−4−12(a), and a permanent injunction is entered preventing enforcement by the defendant of Indiana Code § 35−42−4−12 against any member of the plaintiff class. Signed by Judge Tanya Walton Pratt on 3/28/2013.(JD) (Entered: 03/28/2013)
72 Unopposed MOTION for Extension of Time to May 29, 2013 to File for Attorney's Fees and Costs, filed by Plaintiff JOHN DOE. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 04/17/2013)
73 ORDER granting Pltfs' 72 Motion for Extension of Time to File for Attorney's Fees and Costs to 5/29/2013. Signed by Magistrate Judge Mark J. Dinsmore on 4/18/2013. (SWM) (Entered: 04/18/2013)
74 Unopposed MOTION for Extension of Time to June 28, 2013 to file for Attorney's Fees and Costs, filed by Plaintiff JOHN DOE. (Attachments: # 1 Text of Proposed Order)(Falk, Kenneth) (Entered: 05/22/2013)
75 ORDER granting 74 Motion for Extension of Time to 6/28/13 to File for Attorney's Fees and Costs. Signed by Magistrate Judge Mark J. Dinsmore on 5/23/2013. (TMA) (Entered: 05/23/2013)
76 NOTICE Concerning Payment of Attorney's Fees and Costs, filed by Plaintiff JOHN DOE (Attachments: # 1 Supplement) (Falk, Kenneth) (Entered: 06/07/2013)

Case #: 1:12−cv−00062−TWP−MJD

 
 Case 1:12-cv-00062-TWP-MJD Document 1 Filed 01/17/12 Page 1 of 9 PageID #: 1
t•

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

FILED
1JAN 1 7 2012

JOHN DOE, on his own behalf and

)

on behalf of a class of those similarly

)

situated,

)

)

Plaintiff,

)

)

v.

)

)

CITY OF INDIANAPOLIS, INDIANA, )

PROSECUTOR, MARION COUNTY, )

INDIANA, in his official capacity,

)

)

Defendants.

)

U.S. DISTRICT COURT INDIANAPOliS, INDIANP_
No.
1 : 12 -cv- o0 6 2 TWP -Mmt
COMPLAINT-CLASS ACTION

Class Action Complaint for Declaratory and Injunctive Relief- Notice of Challenge to Constitutionality of State Statute

Introduction

1. Indiana Code § 35-42-4-12(e) makes it a crime for certain sex offenders required to register

on Indiana's sex and violent offender registry to knowingly or intentionally use a social networking

web site or an instant messaging or chat room program if persons under the age of 18 have access to,

or can use, the site or program. To the extent that the sex offenders are not under any supervised

release, but are free from parole, probation, or similar restrictions, the statute is unconstitutional as

violating the First Amendment. John Doe, a sex offender was released from probation in 2004.

However, he is required to register as a sex offender for life and is subject to the prohibition and

penalties of Indiana Code § 35-42-4-12(e) for his entire life. He seeks appropriate injunctive and

declaratory relief on his own behalf and on behalf of a class of those similarly situated.

Jurisdiction, venue, and cause of action

2. This Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1331.

Page 11

Case 1:12-cv-00062-TWP-MJD Document 1 Filed 01/17/12 Page 2 of 9 PageID #: 2
3. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure. 4. Venue is proper in this district and Court pursuant to 28 U.S.C. § 1391. 5. This action is brought pursuant to 42 U.S.C. § 1983 to redress the deprivation, under color of state law, of rights secured by the Constitution of the United States. Parties 6. John Doe, a pseudonym, is an adult resident of Marion County, Indiana. 7. The City of Indianapolis, Indiana, is a municipal entity, and houses a number of agencies, including the police agency, the Indianapolis Metropolitan Police Department. 8. The Marion County Prosecutor is the duly elected official who prosecutes criminal activity within the City of Indianapolis. The office is sued pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Class action allegations 9. This action is brought by plaintiff on his own behalf and on behalf of a class of those similarly situated pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 10. The class is defined as:
all Marion County residents required to register as sex or violent offenders pursuant to Indiana law who are not subject to any fom1 of supervised release and who have been found to be a sexually violent predator under Indiana law or who have been convicted of one or more of the offenses noted in Indiana Code§ 35-42-4-12(b)(2) and who are not within the statutory exceptions noted in Indiana Code § 35-42-412(a). 11. As defined, the class meets all the requirements of Rule 23(a) of the Federal Rules of Civil Procedure. Specifically: a. The class is so numerous that joinder of all members is impracticable. The exact size
of the class must be ascertained through discovery. However, it is believed to be more than 100.
Page 12

Case 1:12-cv-00062-TWP-MJD Document 1 Filed 01/17/12 Page 3 of 9 PageID #: 3
b. There are questions of law or fact common to the class -- whether Indiana Code § 3542-4-12 is unconstitutional to the extent that it prohibits plaintitfand the class, under penalty of criminal prosecution, from using a social networking site or an instant messaging or chat room program.
c. The claims of the plaintiff are typical of those of the class. d. The plaintiff will fairly and adequately protect the interest of the class. Undersigned
counsel is an appropriate person to be appointed class counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure. 12. The further requirements of Rule 23(b)(2) of the Federal Rules of Civil Procedure are met here in that the parties opposing the class have at all times acted or refused to act on grounds that apply generally to the class, so that final injunctive relief and/or corresponding declaratory relief is appropriate respecting the class as a whole. Legal Background 13. Indiana Code§ 35-42-4-12 provides:
(a) This section does not apply to a person to whom all of the following apply: (1) The person is not more than: (A) four (4) years older than the victim if the offense was committed after June 30, 2007; or (B) five (5) years older than the victim if the offense was committed before July 1, 2007. (2) The relationship between the person and the victim was a dating relationship or an ongoing personal relationship. The term "ongoing personal relationship" does not include a family relationship. (3) The crime:
(A) was not committed by a person who is at least twenty-one (21) years of age;
(B) was not committed by using or threatening the use of deadly f()rce; (C) was not committed while anned with a deadly weapon;
Pagej3

Case 1:12-cv-00062-TWP-MJD Document 1 Filed 01/17/12 Page 4 of 9 PageID #: 4
(D) did not result in serious bodily injury; (E) was not facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in TC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance without the victim's knowledge; and (F) was not committed by a person having a position of authority or substantial influence over the victim. (b) This section applies only to a person required to register as a sex or violent offender under IC 11-8-8 who has been: (1) found to be a sexually violent predator under TC 35-38-1-7.5; or (2) convicted of one (1) or more of the following offenses: (A) Child molesting (IC 35-42-4-3). (B) Child exploitation (IC 35-42-4-4(b)). (C) Possession of child pornography (IC 35-42-4-4(c)). (D) Vicarious sexual gratification (IC 35-42-4-5(a) or IC 35-42-4-S(b)). (E) Sexual conduct in the presence of a minor (IC 35-42-4-5(c)). (F) Child solicitation (IC 35-42-4-6). (G) Child seduction (IC 35-42-4-7). (H) Kidnapping (IC 35-42-3-2), if the victim is less than eighteen (18) years of age and the person is not the child's parent or guardian. (I) Attempt to commit or conspiracy to commit an offense listed in clauses (A) through (H). (J) An offense in another jurisdiction that is substantially similar to an offense described in clauses (A) through (H).
(c) As used in this section, "instant messaging or chat room program" means a software program that requires a person to register or create an account, a usemame, or a password to become a member or registered user of the program and allows two (2) or more members or
Page 14

Case 1:12-cv-00062-TWP-MJD Document 1 Filed 01/17/12 Page 5 of 9 PageID #: 5
authorized users to communicate over the Internet in real time using typed text. The term docs not include an electronic mail program or message board program. (d) As used in this section, "social networking web site" means an Internet web site that:
(1) facilitates the social introduction between two (2) or more persons; (2) requires a person to register or create an account, a uscmamc, or a password to become a member of the web site and to communicate with other members; (3) allows a member to create a web page or a personal profile; and (4) provides a member with the opportunity to communicate with another person. The term does not include an electronic mail program or message board program. (e) A person described in subsection (b) who knowingly or intentionally uses: (1) a social networking web site; or (2) an instant messaging or chat room program; that the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program commits a sex offender Internet otTense, a Class A misdemeanor. However, the ofTense is a Class D felony if the person has a prior unrelated conviction under this section. (f) It is a defense to a prosecution under this section that the person: (1) did not know that the web site or program allowed a person who is less than eighteen (18) years of age to access or use the web site or program; and (2) upon discovering that the web site or program allows a person who is less than eighteen (18) years of age to access or use the web site or program, immediately ceased further use or access of the web site or program. Factual allegations 14. John Doe was arrested in 2000 in Marion County, Indiana, and was eventually convicted of two counts of child exploitation. 15. He was convicted in two separate cause numbers with the last conviction in 2002. I 6. After a term of imprisonment he was released in 2003 and was placed on probation.
Page IS

Case 1:12-cv-00062-TWP-MJD Document 1 Filed 01/17/12 Page 6 of 9 PageID #: 6
17. He was released from probation in 2004. 18. He is not currently on any fonn of supervised release. 19. He has not been convicted of any offenses since his 2000 arrest. 20. He is required to register on the Indiana sex and violent of1ender registry for his entire lifetime. 21. Child exploitation is one of offenses noted in Indiana Code § 35-42-4-12 and Mr. Doc does not fall within the exceptions noted in Indiana Code § 35-42-4-12(a). As a result he is subject to the prohibition on use of social networking websites and instant messaging or chat room programs contained in the statute. 22. Because he is required to register for the remainder of his life he may not usc social networking websites or instant messaging or chat room programs that persons under the age of 18 have access to, or can use, for the rest of his lite. 23. He desires to utilize these social networking websites and instant messaging or chat room programs for legitimate and lawful purposes. 24. The ban on social networking websites, instant messagmg, and chat room programs precludes Mr. Doe from discussing matters of public concern as many of these discussions now take place on social networking sites that persons under the age of 18 have access to and/or usc. 25. A prominent social networking site is Faccbook. Persons under the age of 18 have access to Facebook and use this site. The New York Times reports that as of December of2011, Facebook had 200 million members in the United States, or roughly two-thirds of the population. (http://www.nytimes.com/2011/12/14/technology/shunning-facebook-and-living-to-tell-aboutit.html).
Page 16

Case 1:12-cv-00062-TWP-MJD Document 1 Filed 01/17/12 Page 7 of 9 PageID #: 7
26. Many organizations and govemment entities have Faccbook sites so that communication with the entities must be through Facebook. In order to make an on~line comment to the Indianapolis Star a person must log in to Faccbook. Many other media sites utilize Facebook as well. All of Mr. Doe's elected federal representatives have Facebook sites and Mr. Doe is precluded from interacting with his elected representatives in this manner. 27. Social networking sites arc also used by businesses to advertise and to hire new employees. In 2011, 89% of all companies used social media networks to recruit potential employees. (http:/I mashable.com/20 I 1/08/28/social-mcdia-recruiting-infographic/). 28. Mr. Doe owns and operates a business and he is unable to participate in social networking sites that cater to businesses and professionals. For example, Linkedln is a social networking site that describes itself as the world's largest professional network with more than 135 million members worldwide. (http://press.linkedin.com/about). A persons must indicate that they are 18 or older to usc Linkedln (http://www.linkedin.com/static?key=user_agreement) but partial Linkcdln profiles can be accessed by persons of any age. 29. Social networking sites, accessible by persons umler the age of 18, are also used for technical support for consumer items and as a way for consumers to obtain and share information about products and services. 30. Many persons utilize social networking web sites, accessible and/or used by persons under the age of 18, as their primary outlet for communicating and discussing issues with others. 31. These sites allow persons to join in discussions with others in a way that cannot be done by more traditional f()rms of communications. 32. Indiana Code § 35-42-4-12 prevents Mr. Doe and the class from accessing important and significant methods of communication, infonnation gathering, and commerce. Indeed, the statute
Page I 7

Case 1:12-cv-00062-TWP-MJD Document 1 Filed 01/17/12 Page 8 of 9 PageID #: 8
prohibits Mr. Doe and the class from even viewing these sites, even if Mr. Doe and the class do not participate in any discussions 33. However, if Mr. Doe would utilize a social networking site, instant messaging, or chat room program that was used by, or accessible to, persons under the age of 1X, he would be subject to ancst by the Indianapolis Metropolitan Police Department and prosecution by the Marion County Prosecutor. 34. Mr. Doe is therefore refraining from engaging in this expressive activity because he does not wish to break the law and does not wish to be anested and prosecuted. 35. The actions and inactions of defendants are causing plaintiff and the class irreparable harm fix which there is no adequate remedy at law. 36. At all times defendants have acted under color of state law. Claim for relief 37. To the extent that Indiana Code§ 35-42-4-12 precludes plaintiff and the class from accessing social networking sites, instant messaging, or chat room programs for legitimate purposes, the statute unconstitutionally prevents and penalizes expressive conduct in violation of the First Amendment to the United States Constitution. Request for relief
WHEREFORE, plaintiff requests that this Court: a. Accept jurisdiction of this case and set it for hearing at the earliest opportunity. b. Ceriify this case as a class action with the class as defined above. c. Declare that Indiana Code § 35-42-4-12 is unconstitutional for the reasons noted above. d. Enter a preliminary injunction, later to be made pennanent, preventing the enforcement oflndiana Code§ 35-42-4-12(e) against plaintiff and the class.
Page [8

Case 1:12-cv-00062-TWP-MJD Document 1 Filed 01/17/12 Page 9 of 9 PageID #: 9

c.

Award plaintiff his costs and reasonable attorney's fees pursuant to 42 U.S.C. § 1988.

f.

Award all other proper relief

ACLU of Indiana 103 I E. Washington St. Indianapolis, IN 46202 317/635-4059 ext. 104 fax: 317/635-4105 kfalk@aclu-in.org
Attorney for Plaintiff and the Putative Class

Page 19

 
 Case 1:12-cv-00062-TWP-MJD Document 33 Filed 03/06/12 Page 1 of 2 PageID #: 132

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOHN DOE, et al.,

)

)

)

Plaintiff,

)

)

v.

)

)

PROSECUTOR, MARION COUNTY, )

INDIANA.,

)

)

Defendant.

)

No. 1:12-cv-0062 TWP-MJD

ORDER CERTIFYING CASE AS CLASS ACTION

Plaintiff, having filed his Motion to Certify Case as Class Action (Doc. No. 8), and

defendant Prosecutor, Marion County, Indiana, having notified the Court that he does not object

to the certification of the class in this case (Doc. No. 30), and the Court being duly advised, finds

that all the requirements of Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure are met

in this case and, accordingly, the case should be certified as a class action pursuant to Rule

23(b)(2).

IT IS THEREFORE ORDERED that this case is certified as a class action pursuant to

Rule 23(b)(2) of the Federal Rules of Civil Procedure with the plaintiff John Doe as class

representative.

IT IS FURTHER ORDERED that the class is defined as:

all Marion County residents required to register as sex or violent offenders pursuant to Indiana law who are not subject to any form of supervised release and who are sexually violent predators under Indiana law or who have been convicted of one or more of the offenses noted in Indiana Code § 35-42-4-12(b)(2) and who are not within the statutory exceptions noted in Indiana Code § 35-42-4-12(a).

IT IS FURTHER ORDERED that the class is certified as to the claim that Indiana Code

Page | 1

Case 1:12-cv-00062-TWP-MJD Document 33 Filed 03/06/12 Page 2 of 2 PageID #: 133

§ 35-42-4-12 is unconstitutional. IT IS FURTHER ORDERED that Kenneth J. Falk is appointed as counsel for the class
pursuant to Rule 23(g) of the Federal Rules of Civil Procedure.

03/06/2012 ______________ Date
cc:

__________________________________________ Judge, Unit_e_d_S_ta_te_s_D__is_tr_ic_t_C_o_u_rt________
Hon. Tanya Walton Pratt, Judge United States District Court Southern District of Indiana

David A. Arthur OFFICE OF THE ATTORNEY GENERAL David.Arthur@atg.in.gov

Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org

Justin F. Roebel CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL jroebel@indygov.org

Kate E. Shelby INDIANA ATTORNEY GENERAL kate.shelby@atg.in.gov

Alexander Phillip Will OFFICE OF CORPORATION COUNSEL awill@indygov.org

Page | 2

 
 Case 1:12-cv-00062-TWP-MJD Document 71 Filed 03/28/13 Page 1 of 2 PageID #: 457

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOHN DOE, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

PROSECUTOR, MARION COUNTY, )

INDIANA,

)

)

Defendant.

)

No. 1:12-cv-0062 TWP-MJD

JUDGMENT

The Seventh Circuit having issued its Mandate in this action on March 7, 2013, reversing

the previously entered judgment for the defendant, and the Court being duly advised finds that

Judgment should now issue for the plaintiffs consistent with the Mandate of Court of Appeals

and,

IT IS THEREFORE declared that Indiana Code § 35-42-4-12 is unconstitutional as

violating the First Amendment to the United States Constitution, and,

IT IS ORDERED that Judgment is entered in favor of the plaintiff class, all Marion

County residents required to register as sex or violent offenders pursuant to Indiana law who are

not subject to any form of supervised release and who are sexually violent predators under

Indiana law or who have been convicted of one or more of the offenses listed in Indiana Code §

35-42-4-12(b)(2) and who are not within the statutory exceptions noted in Indiana Code § 35-42-

4-12(a), and a permanent injunction is entered preventing enforcement by the defendant of

Indiana Code § 35-42-4-12 against any member of the plaintiff class.

Case 1:12-cv-00062-TWP-MJD Document 71 Filed 03/28/13 Page 2 of 2 PageID #: 458

03/28/2013 ___________ Date

________________________ J_u_d_g_e_H,_U_o_nn_i.t_eT_da_nS_yt_aa_te_Ws_D_a_lits_ot_rni_cP_t_rCa_ot_tu,_r_Jtu_d_g__e__________
United States District Court Southern District of Indiana

cc:
Service of this order will be made electronically on all ECF-registered counsel of record via email generated by the Court’s ECF system

 
 Case 1:12-cv-00062-TWP-MJD Document 29 Filed 02/28/12 Page 1 of 3 PageID #: 112

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOHN DOE, on his own behalf and on behalf of a class of those similarly situated,
Plaintiff,
v.
CITY OF INDIANAPOLIS, INDIANA, PROSECUTOR, MARION COUNTY INDIANA, in his official capacity,
Defendants.

) ) ) ) ) ) )Cause No.: 1:12-cv-0062-TWP-MJD ) ) ) ) ) )

Stipulation of Dismissal of Defendant City of Indianapolis

Come now the parties, by their counsel, and stipulate and agree to the dismissal of

Defendant City of Indianapolis as a party to this suit. The suit challenges the validity of Indiana

Code Section 35-42-4-12. The City agrees to abide by any ruling from this Court regarding the

constitutionality of that statute. Defendant Marion County Prosecutor will continue as a

defendant. Defendant Marion County Prosecutor acknowledges that the City is not a necessary

party to adjudicate the legality of the challenged statute.

WHEREFORE, the parties stipulate that the City of Indianapolis is DISMISSED as a

Party to this suit, with each party to pay its own costs and attorneys fees.

For the Plaintiff:
s/ Kenneth J. Falk Kenneth J. Falk No. 6777-49 ACLU of Indiana 1031 E. Washington St.

Case 1:12-cv-00062-TWP-MJD Document 29 Filed 02/28/12 Page 2 of 3 PageID #: 113
Indianapolis, IN 46202 317/635-4059 ext. 104 fax: 317/635-4105 kfalk@aclu-in.org
For Defendant City of Indianapolis
s/ Justin F. Roebel (with permission) Justin F. Roebel No. 23725-49 Assistant Corporation Counsel Office of Corporation Counsel 200 E. Washington St., Room 1601 Indianapolis, IN 46204 317/327-4055 fax: 317/327-3968 jroebel@indy.gov
For Defendant Marion County Prosecutor
s/David A. Arthur (with permission) David A. Arthur No. 2461-48 Kate Shelby No. 280165-49 Deputy Attorney General IGCS-5th Floor 302 W. Washington St. Indianapolis, IN 46204 317/232-6286 fax: 317/232-7979 David.Arthur@atg.in.gov Kate.Shelby@atg.in.gov

Case 1:12-cv-00062-TWP-MJD Document 29 Filed 02/28/12 Page 3 of 3 PageID #: 114

APPROVED AND MADE THE ORDER OF THE COURT

02/28/2012 __________ Date
cc:

__________________________________________________________________ Judge, SoutHheornn. DTiasntryicatWofaIlntodinanParatt, Judge
United States District Court
Southern District of Indiana

Kenneth J. Falk ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202

Justin F. Roebel and Alexander Phillip Will Office of Corporation Counsel 200 E. Washington St., Room 1601 Indianapolis, IN 46204

David A. Arthur Kate Shelby Deputy Attorneys General IGCS-5th Floor 302 W. Washington St. Indianapolis, IN 46204

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOHN DOE, on his own behalf and on behalf of those similarly situated
Plaintiff,
v.
PROSECUTOR, MARION COUNTY, INDIANA,
Defendant.

)

)

)

)

)

)

Case No. 1:12-cv-00062-TWP-MJD

)

)

)

)

)

ENTRY FOLLOWING BENCH TRIAL ON THE MERITS

In an effort to prevent the sexual exploitation of Hoosier children and protect the public

at large, the State of Indiana prohibits certain registered sex offenders from using social

networking sites, instant messaging programs, and chat room programs that allow access by

persons under the age of 18. See Indiana Code § 35-42-4-12(e). The statute, enacted in 2008,

makes the knowing or intentional use of these sites a Class A misdemeanor. Id. Plaintiff John

Doe (“Mr. Doe”), on his own behalf and on behalf of those similarly situated, contends that this

statute runs afoul of the targeted sex offenders’ First Amendment rights. Initially, Mr. Doe filed

a motion for a preliminary injunction asking the Court to temporarily enjoin enforcement of the

statute by Defendant, Prosecutor of Marion County, Indiana (“State”). (Dkt. #34.) Since then,

the parties have agreed that it would be appropriate for the Court to merge the preliminary

injunction motion with a bench trial (Dkt. #40); see also Fed. R. Civ. P. 65(a)(2). Accordingly,

Mr. Doe now asks the Court to issue a declaratory judgment declaring Indiana Code § 35-42-4-

12 unconstitutional on its face and to permanently enjoin the State’s enforcement of the statute.

The Court presided over oral arguments on May 31, 2012, and the Court thanks counsel for their excellent and thoughtful advocacy.
As discussed below, the Court finds that this content-neutral statute is narrowly tailored, leaves open ample alternative channels of communication, and is not overly broad. It follows, then, that the statute does not violate Mr. Doe’s First Amendment rights. Accordingly, Mr. Doe’s requests to enjoin enforcement of the statute (Dkts. #34 and #42) are DENIED and final judgment is entered in favor of the State.1
I. BACKGROUND As Plaintiff notes, “[t]he use of computer-based social networking web sites, instant messaging, and chat rooms has become ubiquitous in today’s society.” (Dkt. #35 at 1). In particular, social networking has evolved with astonishing speed. The most prominent social networking site, Facebook, was founded in 2004, just eight years ago. Facebook Newsroom, FACEBOOK, http://newsroom.fb.com/content/default.aspx?NewsAreaId=22 (last visited June 22, 2012) (hereinafter “Facebook Newsroom”). Originally created for college students the domain is now opened up to everyone over the age of 13. Statement of Rights and Responsibilities, FACEBOOK, http://www.facebook.com/legal/terms (last visited June 22, 2012).
It now has 901 million active users, including 526 million daily active users, and is available in more than 70 languages. Id. As Plaintiff notes, 3.1 million Hoosiers use Facebook, just shy of 50% of Indiana’s population. (Dkt. #35 at 7). Importantly, Facebook recently announced that it is developing a technology that would allow children younger than 13 years old to use the social-networking site under parental supervision. Anton Troianovski & Shayndi Raice, Facebook Explores Giving Kids Access, WALL ST. J., June 4, 2012, at A1. That same
1 This Entry serves as the Court’s findings of fact and conclusions of law, as required by Federal Rule of Civil Procedure 52.
2

article noted that “many kids lie about their ages to get accounts,” and as many as “7.5 million under the age of 13” use the site. Id. And, to make matters even more troubling, a Consumer Reports survey projects that more than 5 million Facebook users are 10 years old or younger. That Facebook friend might be 10 years old, and other troubling news, CONSUMER REPORTS http://www.consumerreports.org/cro/magazine-archive/2011/june/electronics-computers/state-ofthe-net/facebook-concerns/index.htm (last visited June 22, 2012).
As social networking continues to grow and integrate itself into society, social networking sites become inextricably linked with other access points on the internet. For instance, in order to comment on online stories on the Indianapolis Star’s web site, commenters must now do so through their Facebook accounts. The Indianapolis Star, FACEBOOK, http://www.facebook.com/indianapolis.star (last visited June 22, 2012). The same goes for certain popular political web sites like Politico. Ben Smith, Facebook Comments, POLITICO, http://www.politico.com /blogs/bensmith /0811/ Facebook_comments.html (last visited June 5, 2012). Moreover, the mass proliferation of social networking has greatly enhanced the interconnectedness of the world. By March 2012, more than 125 billion ‘friend’ connections had occurred on Facebook alone. See Facebook Newsroom. And, as evidenced by the “Arab Spring” uprisings in the Middle East, sites like Facebook and Twitter have helped animate numerous social movements, providing activists with a powerful launch pad to communicate with their fellow citizens. See William Saletan, Springtime for Twitter: Is the Internet Driving the Revolutions of the Arab Spring?, Slate, http://www.slate.com/articles/technology/future_tense/ 2011/07/springtime_for _twitter.html (last visited June 5, 2012).
But the advent of new technology always engenders new concerns. One such concern is that social networking, chat rooms, and instant messaging programs have effectively created a
3

“virtual playground” for sexual predators to lurk. This fear is reinforced by countless news stories, many criminal cases, and television shows like MSNBC’s “To Catch a Predator” – which, as the State notes, “sadly never seems to run out of material for new episodes.” (Dkt. #47 at 1); see also United States v. Henzel, 668 F.3d 972, 973 (7th Cir. 2012) (defendant challenged sentence that this Court issued after defendant raped 12-year-old victim after luring her across state lines using a chat room frequented by fans of online video games). And, beyond anecdotes and isolated cases, certain statistics paint a startling picture of the pervasiveness of online sexual exploitation of minors. According to one 2006 report funded through a grant issued by the United States Congress, one in seven youths has received online sexual solicitations and one in three youths has received online exposure to unwanted sexual material. Janis Wolak et al., Online Victimization of Youth: Five Years Later, NATIONAL CENTER FOR MISSING & EXPLOITED CHILDREN, at vii (http://www.missingkids.com/en_US/publications/NC167.pdf) (last visited June 5, 2012). Additionally, Mr. Doe himself states that his son, who is on Facebook, “has had questionable ‘friend’ requests’”. (Dkt. 35 at 9). Simply stated, the real world and the virtual world can be dangerous places for vulnerable minors.
Given this backdrop, numerous states, including Indiana, have attempted to combat online sexual exploitation.2 To that end, in 2008, Indiana passed a law banning certain sex or violent offenders from knowingly or intentionally using or accessing certain platforms of online communication that could be frequented by minors. Specifically, Indiana Code § 35-42-4-12, in its entirety, reads as follows:
(a) This section does not apply to a person to whom all of the following apply:
2 Interestingly, in the past, both Facebook and MySpace have taken measures to regulate the use of their social networking sites by sex offenders. At the behest of state attorneys general, between May 1, 2008 and January 31, 2009, Facebook eliminated 5,500 sex offenders from its web site. Similarly, over a two-year period, MySpace removed 90,000 sex offenders from its site. See Charlotte Chang, Internet Safety Survey: Who will Protect the Children?, 25 BERKELEY TECH. L.J. 501, 503-06 (2010).
4

(1) The person is not more than: (A) four (4) years older than the victim if the offense was committed after June 30, 2007; or (B) five (5) years older than the victim if the offense was committed before July 1, 2007.
(2) The relationship between the person and the victim was a dating relationship or an ongoing personal relationship. The term “ongoing personal relationship” does not include a family relationship. (3) The crime:
(A) was not committed by a person who is at least twenty-one (21) years of age; (B) was not committed by using or threatening the use of deadly force; (C) was not committed while armed with a deadly weapon; (D) did not result in serious bodily injury; (E) was not facilitated by furnishing the victim, without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance without the victim's knowledge; and (F) was not committed by a person having a position of authority or substantial influence over the victim.
(b) This section applies only to a person required to register as a sex or violent offender under IC 11-8-8 who has been:
(1) found to be a sexually violent predator under IC 35-38-1-7.5; or (2) convicted of one (1) or more of the following offenses:
(A) Child molesting (IC 35-42-4-3). (B) Child exploitation (IC 35-42-4-4(b)). (C) Possession of child pornography (IC 35-42-4-4(c)). (D) Vicarious sexual gratification (IC 35-42-4-5(a) or IC 35-42-45(b)). (E) Sexual conduct in the presence of a minor (IC 35-42-4-5(c)). (F) Child solicitation (IC 35-42-4-6). (G) Child seduction (IC 35-42-4-7). (H) Kidnapping (IC 35-42-3-2), if the victim is less than eighteen (18) years of age and the person is not the child’s parent or guardian. (I) Attempt to commit or conspiracy to commit an offense listed in clauses (A) through (H). (J) An offense in another jurisdiction that is substantially similar to an offense described in clauses (A) through (H).
(c) As used in this section, “instant messaging or chat room program” means a software program that requires a person to register or create an account, a username, or a password to become a member or registered user of the program
5

and allows two (2) or more members or authorized users to communicate over the Internet in real time using typed text. The term does not include an electronic mail program or message board program.
(d) As used in this section, “social networking web site” means an Internet web site that:
(1) facilitates the social introduction between two (2) or more persons; (2) requires a person to register or create an account, a username, or a password to become a member of the web site and to communicate with other members; (3) allows a member to create a web page or a personal profile; and (4) provides a member with the opportunity to communicate with another person. The term does not include an electronic mail program or message board program.
(e) A person described in subsection (b) who knowingly or intentionally uses: (1) a social networking web site; or (2) an instant messaging or chat room program;
that the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program commits a sex offender Internet offense, a Class A misdemeanor. However, the offense is a Class D felony if the person has a prior unrelated conviction under this section.
(f) It is a defense to a prosecution under this section that the person: (1) did not know that the web site or program allowed a person who is less than eighteen (18) years of age to access or use the web site or program; and (2) upon discovering that the web site or program allows a person who is less than eighteen (18) years of age to access or use the web site or program, immediately ceased further use or access of the web site or program.
Indiana Code § 35-42-4-12 (emphasis added). Laws like Indiana’s are part of a growing trend in
many states and cities throughout the country. As a recent article in the New York Times noted,
“communities around the country have gone beyond regulating where sex offenders can live and
begun banning them outright from a growing list of public places.” Ana Facio-Krajcer, Public-
Place Laws Tighten Rein on Sex Offenders, N.Y. TIMES, May 29, 2012, at A15. Some
commentators have argued that these laws lack efficacy and are merely low-hanging fruit for
legislatures – “laws that can be passed to make people feel good[.]” Id. Others, however, have
6

emphasized the deterrent effect of such laws and have argued that they are common sense measures to protect children. Id.3
Here, the focal point of Mr. Doe’s challenge to the statute is subsection (e), which makes it a Class A misdemeanor for certain sex offenders (those described in subsection (b)) to knowingly or intentionally use “a social networking web site” or “an instant messaging or chat room program” if the offender knows that minors are allowed “access or use” of that site. Under the statute, subsection (a) exempts certain offenders from the statute, primarily those who were involved in what the State has dubbed “Romeo and Juliet” type relationships (where the victim has reached a certain age but is below the age of consent, and enters into a “consensual” sexual relationship with an adult who is under the age of 21). Subsection (c) defines “instant messaging or chat room program” while subsection (d) defines “social networking web site.” Subsections (c) and (d) clarify that the phrases “instant messaging or chat room program” and “social networking web site” do not include message boards or email.
For good reasons, the Court has allowed Mr. Doe, an adult resident of Indianapolis, Indiana, to proceed anonymously in this case. (Dkt. #26.) But, through the briefing, Mr. Doe has revealed certain information about himself which sheds light on why he is challenging the statute. Mr. Doe was arrested in Marion County in 2000 and convicted of two counts of child exploitation. He was released from prison in 2003 and from probation in 2004, and is not currently on any form of parole, supervised release or similar restrictions. Mr. Doe has physical custody of his teenage son. Under Indiana law, Mr. Doe is required to register on Indiana’s sex and violent offender registry for the remainder of his life. Because Indiana Code § 35-42-4-12(e)
3 No statistics concerning the efficacy of Indiana’s statute (or other similar measures) are in the record, probably because reliable statistics are difficult to ascertain. After all, it is exceedingly difficult to prove a negative as it would likely be impossible to accurately determine exactly how many incidents of sexual exploitation of minors have been prevented as a result of this legislation.
7

applies to him, Mr. Doe is barred from knowingly or intentionally accessing a social networking site, instant messaging program, or a chat room, if he knows that site allows someone under the age of 18 to use or access the site. Mr. Doe would like to access such sites and programs for legitimate and lawful reasons. For example, Mr. Doe would like to: (1) use Facebook to monitor his teenage son’s social networking activity; (2) participate in certain political speech online that requires social networking accounts; (3) advertise for his small business using social networking; (4) view photographs and videos of family members who are scattered throughout the United States; and (5) participate in certain communications and petitions relevant to pilots (Mr. Doe is also a pilot).
Mr. Doe challenges Indiana’s statute on First Amendment grounds, writing that “[t]o the extent that this ban is applied to former offenders who are not on parole, probation, or other forms of supervised release, it denies them the ability to communicate and associate in violation of the First Amendment of the United States Constitution.” (Dkt. #35 at 1). The State counters that the statute does not violate Mr. Doe’s (or similarly situated persons’) First Amendment rights, highlighting that “the statute is narrowly directed at those found most likely to commit repeat offenses and who have victimized children.” (Dkt. #47 at 3). Additional facts are added below as needed.
II. DISCUSSION A. First Amendment Rights Affected
Mr. Doe makes a facial challenge to the statute at issue on First Amendment grounds. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. CONST. amend. I. According to Mr. Doe, the
8

statute affects three rights secured by the First Amendment: (1) the right to communicate; (2) the right to receive information; and (3) the right to associate.
It appears well-settled that all three of these rights are secured by the First Amendment. See, e.g., Hill v. Colorado, 530 U.S. 703, 728 (2000) (the First Amendment protects “the right of every citizen to reach the minds of willing listeners”) (citations and internal quotations omitted); District of Columbia v. Heller, 554 U.S. 570, 582 (2008) (“[T]he First Amendment protects modern forms of communications.”); Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982) (plurality) (“the right to receive ideas follows ineluctably from the sender’s First Amendment right to send them”) (emphasis in original); Christian Legal Society v. Walker, 453 F.3d 853, 861 (7th Cir. 2006) (noting that the First Amendment protects “the freedom to gather together to express ideas – the freedom to associate”) (citations omitted). Moreover, it is also settled that the First Amendment’s protections “extend fully to communications made through the medium of the internet.” Doe v. Shurtleff, 628 F.3d 1217, 1222 (10th Cir. 2010), cert. denied, __ U.S. __, 131 S.Ct. 1617 (2011) (citing Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997) (explaining that the internet allows “any person with a phone line [to] become a town crier with a voice that resonates farther than it could from any soapbox” and that “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium”)). B. What standard applies to the constitutional analysis of this statute?
Having established that his First Amendment rights are affected by the statute, Mr. Doe argues that the statute fails the requisite scrutiny. Significantly, Mr. Doe concedes that the statute is “content neutral,” which means that it is a speech regulation that is “justified without reference to the content of the regulated speech.” Ward v. Rock Against Racism, 491 U.S. 781,
9

791 (1989) (citation and internal quotations omitted). In other words, the law is not related to the subject matter or topic of speech. “For First Amendment purposes, content-neutral regulations do not pose the same inherent dangers to free expression that content-based regulations do; thus, they are subject to a less rigorous analysis, which affords the government latitude in designing regulatory solutions.” 16A AM. JUR. 2D Constitutional Law § 478 (citation omitted).
Specifically, a content neutral regulation is upheld if it: (1) is “narrowly tailored to serve a significant governmental interest”; and (2) “leave[s] open ample alternative channels for communication of the information.” Ward, 491 U.S. at 791 (emphasis added). If the statute satisfies these criteria, then it is deemed to be a “reasonable time, place and manner regulation[.]” United States v. Grace, 461 U.S. 171, 177 (1983). Mr. Doe argues that the Indiana statute at issue is not narrowly tailored and fails to leave open alternative channels of communication; therefore, it fails on both fronts. Obviously, the State disagrees. The Court considers these requirements in turn.
1. Narrow Tailoring As an initial matter, throughout the briefing, Mr. Doe emphasizes both the overly broad nature of the statute and its lack of narrow tailoring. As Mr. Doe’s counsel conceded at oral arguments, however, these are two sides of the same coin – not two separate and distinguishable arguments. (This makes sense, as a statute presumably cannot be both “overly broad” and “narrowly tailored.”) Moreover, it is worth noting that the overbreadth doctrine is not needed where, as here, “[t]he plaintiffs in this case assert their legitimate intention to engage in the protected expression themselves” and “a plaintiff class has been certified which includes everyone who might be affected by the statute.” Hodgkins ex rel. Hodgkins v. Peterson, 355 F.3d 1048, 1056 (7th Cir. 2004) (citations omitted). Thus, Mr. Doe “need not really rely on the
10

overbreadth doctrine to assert [his] facial challenge.” Id. Accordingly, the Court will confine its analysis to whether or not the statute is “narrowly tailored.” But, in doing so, the Court will of course consider whether the statute is “overly broad.”
“[T]he requirement of narrow tailoring is satisfied so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation…. So long as the means chosen are not substantially broader than necessary to achieve the government’s interest . . . the regulation will not be invalid simply because a court concludes that the government interest could be adequately served by some less-speech-restrictive alternative.” Ward, 491 U.S. 799-800 (emphasis added; citations and internal quotations omitted). To defend the regulation on speech, the government must “demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 664 (1994).
Mr. Doe does not dispute that the statute promotes “a substantial government interest”; nor does he dispute that the harms posed by online sexual predators are “real.” See, e.g., Sable Communications of Cal., Inc. v. F.C.C., 492 U.S. 115, 126 (1989) (the government has “a compelling interest in protecting the physical and psychological well-being of minors”). Instead, Mr. Doe argues that the “means chosen are substantially broader than necessary.” According to Mr. Doe, the statute’s “vast breadth” is illustrated by the fact that it precludes certain sex offenders from: making comments about current events on the Indianapolis Star web site; participating in political discussions in certain chat rooms; advertising for businesses using certain social networking sites; or sharing photos and having group discussions with family members through Facebook. On this point, the Court readily acknowledges that the statute captures considerable conduct that has nothing to do with interacting with minors.
11

That said, Mr. Doe’s argument is important for what it does not say. Tellingly, Mr. Doe never furnishes the Court with workable measures that achieve the same goal (deterrence and prevention of online sexual exploitation of minors) while not violating his First Amendment rights. Here, the statute bars a subset of registered sex offenders from visiting a subset of web sites that minors (and the public at large) use with regularity, which include Facebook, Twitter, Google Plus, various chat rooms, and various instant messaging programs. In other words, Mr. Doe is only precluded from using web sites where online predators have easy access to a nearly limitless pool of potential victims.
Notably, the vast majority of the internet is still at Mr. Doe’s fingertips. Cf. United States v. Miller, 594 F.3d 172, 188 (3d Cir. 2010) (vacating special condition of supervised release forever banning person convicted of receiving child porn from ever accessing the internet); United States v. Holm, 326 F.3d 872, 877-79 (7th Cir. 2003) (“We find that to the extent that the condition is intended to be a total ban on Internet use, it sweeps more broadly and imposes a greater deprivation on Holm’s liberty than is necessary, and thus fails to satisfy the narrow tailoring requirement of § 3583(d)(2).”). For example, Mr. Doe could create or participate in a LISTSERV (a computer program that allows people to create, manage and control electronic mailing lists) in order to communicate with fellow pilots or persons who have other similar interests. And, importantly, Mr. Doe (and those similarly situated) can still communicate through email, message boards, and social networking sites that require the user to be 18 years old.
Although there was some confusion on this point during the briefing, it is seemingly clear that Mr. Doe can use the professional networking web site LinkedIn. See LinkedIn Privacy Policy, Section 5A, Important Information, http://www.linkedin.com/ static?key= privacy_policy
12

(last visited June 5, 2012) (“Children under the age of 18 are not eligible to use our service.”).4 Therefore, Mr. Doe is incorrect when he writes that he “cannot communicate with peers and potential clients and employers on . . . LinkedIn[.]” (Dkt. 35 at 18).
As the State argued, because the statute prohibits only certain sites that allow minors, if a minor untruthfully accesses that site, that is not the same thing as being allowed by the site to have access. Further, the statute at issue provides a defense to prosecution if the person (1) did not know that the web site or program allowed a person who is less than eighteen (18) years of age to access or use the web site or program; and (2) upon discovering that the web site allows a person who is less than eighteen years of age to access or use the program, immediately ceased further use or access of the web site or program.
In short, the Court finds that Indiana’s statute is not “substantially broader than necessary” to achieve its goals of prevention and deterrence. Under these circumstances, courts are deeply reluctant to invalidate a statute and prohibit a State from enforcing conduct that is within its power to proscribe. See Broadrick v. Oklahoma, 413 U.S. 601 at 614 (1973). Perhaps this Court could devise a “less-speech-restrictive alternative” that still achieved the same basic goals. However, the Court’s role is not to draft a perfect law. Instead, the Court is only tasked with ensuring that means chosen are not “substantially broader than necessary.” As described above, this law fulfills this criterion.
Mr. Doe makes a separate, but related, argument under the heading of narrow tailoring: namely, this law is unnecessary because Indiana already prohibits the solicitation of children “by using a computer network.” See Indiana Code § 35-42-4-6(a)(4); see also Indiana Code § 35-424-13(c) (barring person who is at least 21 from knowingly or intentionally communicating with
4 At oral arguments, the State conceded that if, in fact, this was LinkedIn’s policy, Doe would be able to use it.
13

an individual whom the person believes to be less than 14 concerning “sexual activity with intent to gratify . . . sexual desires”). According to Mr. Doe, there is no point in criminalizing the mere use of a web site when the real wrongs – online solicitation and age-inappropriate sexual communication – are already criminalized. This argument has some appeal, but the Court is not persuaded. Significantly, the statutes serve different purposes. One set of statutes aims to punish those who have already committed the crime of solicitation. The challenged statute, by contrast, aims to prevent and deter the sexual exploitation of minors by barring certain sexual offenders from entering a virtual world where they have access to minors.
In making this distinction, it is worth emphasizing that the risk of recidivism by sex offenders has been described by the United States Supreme Court as “frightening and high.” Smith v. Doe 538 U.S. 84, 103 (2003) (citation and internal quotations omitted); see also Conn. Dept. of Public Safety v. Doe, 538 U.S. 1, 4 (2003) (“[W]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be re-arrested for a new rape or sexual assault.”) (citation and internal quotations omitted).5 Given the high recidivism rates, it is obvious that many sex offenders have difficulty controlling their internal compulsions to commit these crimes. It stands to reason that many sex offenders might sign up for social networking with pure intentions, only to succumb to their inner demons when given the opportunity to interact with potential victims.
Logically following, society has a strong interest in ensuring that sex offenders do not place themselves in these potentially dangerous situations. That is what this law attempts to do,
5 That being said, the Court has also located articles calling the accuracy of these statements into question. See Carl Bialik, Underreporting Clouds Attempt to Count Repeat Sex Offender, WALL ST. J., January 25, 2008, http://online.wsj.com/article/SB120122376053515485.html (last visited May 31, 2012) (“Conventional wisdom says people released after serving time for sex crimes are likely to strike again. The numbers aren’t as certain. Among convicted criminals released from prison, sex offenders released from prison are less likely to be arrested for any new crime than most other offenders, with the notable exception of murderers, researchers say.”).
14

and laws with similar purposes have been upheld. See, e.g., United States v. Comstock, __ U.S. __, 130 S.Ct. 1949, 1954 (2010) (Congress has the authority under the Constitution to allow the continued civil commitment of sex offenders after they have completed their criminal sentences); Smith, 538 U.S. at 93 (“[A]n imposition of restrictive measures on sex offenders adjudged to be dangerous is a legitimate nonpunitive governmental objective and has been historically so regarded.”) (citation and internal quotations omitted); see also Indiana Code § 35-42-4-11(c) (prohibiting certain registered sex offenders from residing within 1,000 feet of a school, park or youth activity center).
As the Seventh Circuit noted in Doe v. City of Lafayette, 377 F.3d 757 (7th Cir. 2004), “[t]he City was not bound to wait until Mr. Doe again committed [a crime against children] in order to act.” Id. at 767, n.8. That principle applies with considerable force here, notwithstanding the distinguishing features between that case and the present one. Or, as the State writes, it “need not wait until a child is solicited by a sex offender on Facebook; rather, it can bar predators from haunting social networking websites in the first place.” (Dkt. 47 at 8). In sum, the need to deter sexual predators reinforces that the statute at issue is not rendered unnecessary by a separate Indiana statute criminalizing online child solicitation. The statute at issue bars a subset of sex offenders from using a subset of web sites that could easily facilitate communications between sexual predators and their prey. Accordingly, the Court finds that the statute at issue is narrowly tailored to advance a substantial government interest.6 See Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir. 2000) (“By limiting the ordinance’s restrictions to only
6 Although the Court did not explicitly address it for the reasons described above, this same basic reasoning would apply to Mr. Doe’s arguments regarding “substantial overbreadth.” Moreover, to the extent this statute applies to persons who committed sex crimes against adults (e.g. rape and criminal deviate conduct), and not children, the same basic reasoning and concerns apply. Additionally, the rapists and criminal deviates that have victimized adults are likely not similarly situated to Mr. Doe as they are not members of the class. The class encompasses the offenses noted in Indiana Code § 35-42-4-12(b)(2). (Dkt. 33 at 1). The rapist and criminal deviates required to register as sex or violent offenders are covered under Indiana Code § 35-42-4-12(b)(1).
15

those certain times and places where citizens naturally would feel most insecure in their surroundings, the city has effectively narrowed the application of the law to what is necessary to promote its legitimate interest.”).
2. Alternative channels of communication But that does not end the inquiry, as the statute must also leave open ample alternative channels for communication. It is well-established that “[a]n adequate alternative does not have to be the speaker’s first or best choice . . . or one that provides the same audience or impact for the speech.” Id. (citations omitted). However, the choice must be more than “theoretically available”; it must be “realistic as well.” Id. Mr. Doe argues that his access to alternative channels of communications has been severely and unnecessarily curtailed. On this point, Mr. Doe contends that the challenged statute “totally forecloses various methods of communication.” (Dkt. #35 at 21). The Court respectfully disagrees. Facebook, Twitter, Google Plus, and the like are important communicative tools, but Mr. Doe still has myriad feasible alternative forms of communications at his disposal, including the ability to congregate with others, attend civic meetings, call in to radio shows, write letters to newspapers and magazines, post on message boards, comment on online stories that do not require a Facebook (or some other prohibited account), email friends, family, associates, politicians and other adults, publish a blog, and use social networking sites that do not allow minors (e.g. LinkedIn and a number of other sites which allow only adults). The Court readily concedes that social networking is a prominent feature of modern-day society; however, communication does not begin with a “Facebook wall post” and end with a “140-character Tweet.” As previously indicated, Mr. Doe points out that “In Indiana there are 3.1 million persons, slightly less that 50% of the population, who use Facebook” (Dkt.
16

#35 at 7), which would mean that slightly more than 50% of Hoosiers do not use Facebook. It is evident that robust supplies of alternative forms of communication are easy to use, realistic, and effective. It is true, as Mr. Doe emphasizes, that some of the banned forms of communication may be superior in numerous respects to their “old-fashioned” counterparts. But, again, to be “adequate,” the channel of communication does not have to be “the speaker’s first or best choice.” Gresham, 225 F.3d at 906.; see also Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 809 (1985) (an ample alternative does not need to be the most efficient one for speaker’s purposes). Accordingly, the Court finds that, notwithstanding Indiana Code § 35-42-4-12, Mr. Doe still has an adequate number of substitute forms of communication at his disposal. C. Is Doe v. Jindal on-point?
Before concluding, the Court pauses to acknowledge the District Court of the Middle District of Louisiana’s non-binding decision in Doe v. Jindal, 2012 WL 540100 (M.D. La. Feb. 16, 2012). In Jindal, the district court ruled that a Louisiana statute barring certain sex offenders who had committed crimes against children from accessing social networking sites, chat rooms, and peer-to-peer networks was unconstitutionally overbroad. The court concluded that:
[t]here can be no doubt that the state has a wholly legitimate interest in protecting children from sex offenders online. However, the state’s interests can [only] be served by a narrowly drawn statute tailored precisely toward the conduct the [state] wishes to proscribe . . . . In its current form, the Act is not crafted precisely or narrowly enough – as is required by constitutional standard – to limit the conduct it seeks to proscribe. Accordingly, on its face . . . the Act is substantially overbroad and, therefore, invalid under the First Amendment. Id. at *6. For obvious reasons, Mr. Doe highlights the strong resemblance between this case and Jindal.
17

However, for numerous reasons, Jindal is distinguishable. First, the Jindal court observed that Louisiana’s statute appeared to ban an extreme array of web sites–including the web site for the court and potentially imposed “a sweeping ban on many commonly read news and information websites, in addition to social networking websites such as MySpace and Facebook.” Id. at *5. Importantly, Indiana’s statute does not pose similar concerns; the State readily concedes that Mr. Doe is free to surf all manner of basic news and information sites. Second, here, the parties agree that the statute is content-neutral, and therefore should be analyzed using the “narrow tailoring/alternative channels” framework. The Jindal court did not mention, let alone employ, this framework. Third, the Jindal court relied heavily on the Supreme Court’s decision in United States v. Stevens, __ U.S. __, 130 S.Ct. 1577 (2010). However, Stevens did not deal with a content-neutral statute, like the Indiana statute. Instead, Stevens involved a federal statute criminalizing the commercial creation, sale, or possession of depictions of animal cruelty. Accordingly, the federal statute “explicitly regulate[d] expression based on content[.]” Id. at 1584 (emphasis added). Thus, Stevens is not particularly applicable to the present case. For these three reasons, the Court finds that Jindal is distinguishable.
III. CONCLUSION For the above reasons, the Court DENIES Mr. Doe’s Motion for Preliminary Injunction and his request for permanent relief in the form of a declaratory judgment and a permanent injunction. (Dkts. #34 and #42.) Final judgment in favor of the State will accompany this entry.

SO ORDERED. Date: _0_6_/_2_2_/2_0_1_2

________________________ Hon. Tanya Walton Pratt, Judge United States District Court Southern District of Indiana

18

DISTRIBUTION: David A. Arthur OFFICE OF THE ATTORNEY GENERAL David.Arthur@atg.in.gov Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org Justin F. Roebel CITY OF INDIANAPOLIS, OFFICE OF CORPORATION COUNSEL jroebel@indygov.org Kate E. Shelby INDIANA ATTORNEY GENERAL kate.shelby@atg.in.gov Alexander Phillip Will OFFICE OF CORPORATION COUNSEL awill@indygov.org
19

 
 Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694 (2013) 89 A.L.R.6th 771

705 F.3d 694 United States Court of Appeals,
Seventh Circuit.
John DOE, Plaintiff–Appellant, v.
PROSECUTOR, MARION COUNTY, INDIANA, Defendant–Appellee.
No. 12–2512. |
Argued Nov. 27, 2012. |
Decided Jan. 23, 2013.
Synopsis Background: Sex offender, on behalf of class of similarly situated sex offenders, filed action to challenge Indiana statute on First Amendment grounds that prohibited most registered sex offenders from using social networking websites, instant messaging services, and chat programs. The United States District Court for the Southern District of Indiana, Tanya Walton Pratt, J., 2012 WL 2376141, entered judgment for defendant. Plaintiff appealed.
The Court of Appeals, Flaum, Circuit Judge, held that statute was not narrowly tailored to serve significant governmental interest.
Reversed and remanded.
Attorneys and Law Firms
*695 Kenneth J. Falk (argued), Attorney, Indiana Civil Liberties Union, Indianapolis, IN, for Plaintiff–Appellant.
Frances Barrow (argued), Attorney, Office of the Attorney General, Indianapolis, IN, for Defendant– Appellee. Before FLAUM and TINDER, Circuit Judges, and THARP, District Judge.*
Opinion
FLAUM, Circuit Judge.
1

A recent Indiana statute prohibits most registered sex offenders from using social networking websites, instant messaging services, and chat programs. John Doe, on behalf of a class of similarly situated sex offenders, challenges this law on First Amendment grounds. We reverse the district court and hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.
I. Background
A. Legislative Background Indiana Code § 35–42–4–12 prohibits certain sex offenders from “knowingly or intentionally us[ing]: a social networking web site”1 or “an instant messaging or *696 chat room program”2 that “the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program.” § 35–42–4– 12(e) (violation constitutes a Class A misdemeanor but subsequent violations constitute Class D felonies). The law applies broadly to all individuals required to register as sex offenders under Indiana Code § 11–8–8, et seq., who have committed an enumerated offense. § 35–42–4– 12(b)(1)–(2). The law does not differentiate based on the age of victim, the manner in which the crime was committed, or the time since the predicate offense. Subsection (f) provides an express defense if the individual did not know the website allowed minors or upon discovering it does, immediately ceased further use. § 35–42–4–12(f). Subsection (a) exempts persons convicted of so-called Romeo and Juliet relationships where the victim and perpetrator are close in age and had a consensual relationship. § 35–42–4–12(a).
B. Procedural Background
1. John Doe’s Suit

Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694 (2013) 89 A.L.R.6th 771

In 2000, Doe was arrested in Marion County and convicted of two counts of child exploitation. Although he was released from prison in 2003 and is not on any form of supervised release, he must register as a sex offender on Indiana’s registry. And because child exploitation is an enumerated offense, section 35–42–4– 12 prohibits Doe from using the covered websites and programs. Doe filed suit against the Marion County Prosecutor alleging the law violates his First Amendment rights (as incorporated under the Fourteenth Amendment).3 The district court granted his request to proceed anonymously and later granted his motion to certify a class pursuant to Federal Rule of Civil Procedure 23(b)(2). It defined the class as:
all Marion County residents required to register as sex or violent offenders pursuant to Indiana law who are not subject to any form of supervised release and who have been found to be a sexually violent predator under Indiana law or who have been convicted of one or more of the offenses noted in Indiana Code § 35–42–4– 12(b)(2) and who are not within the statutory exceptions noted in Indiana Code § 35–42–4–12(a). Doe filed a motion for preliminary injunction, but the parties agreed it should be treated as a motion for a permanent injunction and decided after a full bench trial. The district court ordered as much. See Fed.R.Civ.P. 65(a)(2). The parties further agreed no additional discovery was required and there would be no live evidence at trial. Accordingly, the bench trial consisted of the introduction of four affidavits—two from Doe and two from social media experts—as well as arguments from counsel.

because it “only preclude[s] ... using web sites where online predators have easy access” to children, but “the vast majority of the internet is still at Mr. Doe’s fingertips.” The district court concluded that the law is not “substantially broader than necessary” because social networking sites without minors, e-mail, and message boards present alternative methods to communicate as Doe wished.
Doe offered another Indiana law that already prohibits online solicitation of children as evidence that the law is not narrowly tailored. The district court rejected this argument stating that “the statutes serve different purposes”: “[o]ne set of statutes aims to punish those who have already committed the crime of solicitation,” while the “challenged statute, by contrast, aims to prevent and deter the sexual exploitation of minors by barring certain sexual offenders from entering a virtual world where they have access to minors.” (emphases in original). The district court concluded by noting the statute furthers the state’s “strong interest in ensuring that sex offenders do not place themselves in these potentially dangerous situations.”
On the issue of alternative channels of communication, the district court listed several social network alternatives, namely: “the ability to congregate with others, attend civic meetings, call in to radio shows, write letters to newspapers and magazines, post on message boards, comment on online stories that do not require a Facebook [account], email friends, family, associates, politicians and other adults, publish a blog, and use social networking sites that do not allow minors.”
Doe timely appeals this decision.

2. Lower Court Decision After the bench trial, the district court upheld the law and entered judgment for *697 the defendant. It found the law implicates Doe’s First Amendment rights but held the regulation is narrowly tailored to serve a significant state interest and leaves open ample alternative channels of communication.
Although the court noted that the statute “captures considerable conduct that has nothing to do” with the state’s legitimate interest in protecting children from predators, it asserted “Doe never furnishes the Court with workable measures that achieve the same goal (deterrence and prevention of online sexual exploitation of minors) while not violating his First Amendment rights.” The district court reasoned that the law is narrowly tailored
2

II. Discussion
We review a denial of a permanent injunction for abuse of decision, accepting all factual determinations unless they are clearly erroneous. 3M v. Pribyl, 259 F.3d 587, 597 (7th Cir.2001). However, this case presents a single legal question, which we review de novo.4 The statute clearly implicates Doe’s First Amendment rights as incorporated through the Fourteenth Amendment. It not only precludes expression through the medium of social media, see Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (“the usual rule [is] that governmental bodies may not prescribe the form or content of individual expression”), it also limits his “right

Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694 (2013) 89 A.L.R.6th 771

to receive information and ideas,” Stanley v. *698 Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); see Procunier v. Martinez, 416 U.S. 396, 408–09, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) (“[T]he addressee as well as the sender of direct personal correspondence derive [ ] from the First and Fourteenth Amendments a protection against unjustified governmental interference with the intended communication.”). The Indiana law, however, is content neutral because it restricts speech without reference to the expression’s content. Turner Broadcasting Sys. v. FCC, 512 U.S. 622, 641–42, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). As such, it may impose reasonable “time, place, or manner restrictions.” Clark v. Comm. for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). To do so, the law must satisfy a variant of intermediate scrutiny—it must be “narrowly tailored to serve a significant governmental interest” and “leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Because we conclude the law is not narrowly tailored, we need not reach the alternative channel inquiry.
The state initially asserts an interest in “protecting public safety, and specifically in protecting minors from harmful online communications.” Indiana is certainly justified in shielding its children from improper sexual communication. Doe agrees, but argues the state burdens substantially more speech than necessary to serve the intended interest. Indiana naturally counters that the law’s breadth is necessary to achieve its goal. On this point, the Supreme Court’s cases on narrow tailoring are instructive.
“A complete ban [such as the social media ban at issue] can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil.” See Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). In Frisby, the Court upheld an ordinance that prohibited picketing focused on a particular residence. Id. at 477, 108 S.Ct. 2495. The regulation sought to stop a recent pattern of abortion protesters that surrounded abortion doctors’ homes. The Court found that the state had a significant interest in protecting “residential privacy,” and a “complete prohibition” was the only way to further this interest. Id. at 484–86, 108 S.Ct. 2495. The Court reasoned that “the evil of targeted residential picketing ... is created by the medium of expression itself.” Id. at 487–88, 108 S.Ct. 2495 (internal quotations omitted). A ban on all picketing would have gone too far because only the focused residential protests threatened the state interest. Id. at 486, 108 S.Ct. 2495. Similarly, in City of Los Angeles v.

Taxpayers for Vincent, a city ordinance prohibited posting signs on public property. 466 U.S. 789, 792, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). The Court concluded these signs constituted “visual blight” and the regulation furthered the city’s legitimate interest in esthetic values. Id. at 805, 104 S.Ct. 2118. The Court upheld the complete ban reasoning the “substantive evil—visual blight—is not merely a possible by-product of the activity, but is created by the medium of expression itself.” Id. at 810, 104 S.Ct. 2118.
In contrast to Frisby and Vincent, the Supreme Court has invalidated bans on expressive activity that are not the substantive evil if the state had alternative means of combating the evil. In Schneider v. Town of Irvington, the Court struck down various blanket prohibitions against distributing handbills. 308 U.S. 147, 162–64, 60 S.Ct. 146, 84 L.Ed. 155 (1939). The laws in that case furthered a legitimate interest in preventing litter. But unlike the ordinances in Frisby and Vincent, the *699 expressive activity—handing paper to people in public—did not produce the evil. The recipients’ incidental decision to drop the paper did. As such, the Court required the cities to prevent littering by enforcing littering laws; they could not prohibit activity that might incidentally result in littering. Id. at 162–63, 60 S.Ct. 146. Similarly, in Martin v. City of Struthers, the Court invalidated an ordinance that prohibited all door-to-door distributions or solicitations because “[t]he dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors.” 319 U.S. 141, 147, 63 S.Ct. 862, 87 L.Ed. 1313 (1943). For example, those who did not want to receive a stranger could post no trespassing signs, and states could permissibly punish those who disobeyed the warnings. Id.
Turning to the Indiana statute, the state agrees there is nothing dangerous about Doe’s use of social media as long as he does not improperly communicate with minors. Further, there is no disagreement that illicit communication comprises a minuscule subset of the universe of social network activity. As such, the Indiana law targets substantially more activity than the evil it seeks to redress. Even the district court agreed with this sentiment, stating the law “captures considerable conduct that has nothing to do” with minors. Indiana prevents Doe from using social networking sites for fear that he might, subsequent to logging on to the website or program, engage in activity that Indiana is entitled to prevent. But like the states in Schneider and Martin, Indiana has other methods to combat unwanted and inappropriate communication between minors and sex offenders. For instance, it is a felony in Indiana for persons over twenty-

3

Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694 (2013) 89 A.L.R.6th 771

one to “solicit” children under sixteen “to engage in: (1) sexual intercourse; (2) deviate sexual conduct; or (3) any fondling intended to arouse or satisfy the sexual desires of either the child or the older person.” Ind.Code § 35–42– 4–6 (it is also a felony for person between the ages of eighteen to twenty-one to solicit children under fourteen). A separate statute goes further. It punishes mere “inappropriate communication with a child” and communication “with the intent to gratify the sexual desires of the person or the individual,” Ind.Code § 35– 42–4–13 (applies to persons over twenty-one communicating with children fourteen or younger). Significantly, both statutes have enhanced penalties for using a computer network and better advance Indiana’s interest in preventing harmful interaction with children (by going beyond social networks). They also accomplish that end more narrowly (by refusing to burden benign Internet activity). That is, they are neither over- nor under-inclusive like the statute at issue here.5
In conducting this analysis, however, we must be most careful not to impose too high a standard on Indiana. The Supreme Court has continually reminded us that the state’s regulation “need not be the least restrictive or least intrusive means of” combating the state’s legitimate interests, Ward, 491 U.S. at 798, 109 S.Ct. 2746, and post-hoc analyses, like the one we are engaging in, are particularly susceptible to running afoul of this principle. At first glance, this standard seems in tension with language in Frisby noting a law must “target[ ] and eliminate[ ] no more than the exact source of the ‘evil’ it seeks to remedy,” Frisby, 487 U.S. at 485, 108 S.Ct. 2495, and indeed, that is what the dissenters in Ward alleged, see *700 Ward, 491 U.S. at 804–07, 109 S.Ct. 2746 (Marshall, J., dissenting). However, Ward scales back Frisby in a limited number of situations. On the one hand, Ward adds a quantitative component to the Frisby language by noting the law must not be “substantially broader than necessary.” Id. at 800, 109 S.Ct. 2746 (emphasis added). On the other hand, Ward also embodies an administrability exception in stating “the requirement of narrow tailoring is satisfied ‘so long as the [state interest] would be achieved less effectively absent the regulation.’ ” Ward, 491 U.S. at 799, 109 S.Ct. 2746 (original quotations and alterations omitted). In other words, the Constitution tolerates some over-inclusiveness if it furthers the state’s ability to administer the regulation and combat an evil.
Hill v. Colorado is illustrative. 530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). There, the state, concerned about abortion protests, passed a statute that prohibited approaching individuals within a 100–foot radius of a healthcare facility “for the purpose of passing a leaflet or

handbill to, displaying a sign to, or engaging in oral protest, education or counseling with [an]other person” on public property. Id. at 707, 120 S.Ct. 2480. The Court acknowledged that in furthering the state’s interest in providing unimpeded access to healthcare facilities and shielding patients from potentially traumatic encounters, the state’s blanket prohibition on approaching individuals would “sometimes inhibit a demonstrator whose approach in fact would have proved harmless.” Id. at 729, 120 S.Ct. 2480. But this over-inclusiveness was “justified by the great difficulty” in creating a law that “targets and eliminates no more than the exact source of the ‘evil.’ ” See id.; Frisby, 487 U.S. at 485, 108 S.Ct. 2495. The Court hypothesized that the ideal statute would prove convoluted, potentially protecting “a pregnant woman from physical harassment with legal rules that focus exclusively on the individual impact of each instance of behavior, demanding in each case an accurate characterization (as harassing or not harassing) of each individual movement within the 8–foot boundary.” Hill, 530 U.S. at 729, 120 S.Ct. 2480. Thus, the statute at issue in Hill was constitutional because (1) the prohibited expression that did not further the state interest was minimal, and (2) its inclusion stemmed from the difficulty in carving a rule that covered precisely the evil contemplated by the legislature.
The Indiana statute’s over-inclusiveness, however, cannot be justified by the administrability concerns described in Hill. With little difficulty, the state could more precisely target illicit communication, as the statutes above demonstrate. See Ind.Code §§ 35–42–4–6; 35–42–4–13. To be sure, other sex-offender or social media statutes might present different administrability questions. For instance, a hypothetical law banning all communication between minors and sex offenders through social media burdens less speech but nevertheless creates problems. Such a law frees most expression from regulation but still prohibits substantial harmless speech—e.g., at a very basic level, it would prohibit conversations between a parent and child if the parent is a sex offender. But as additional exceptions make a law more precise, the overinclusiveness concerns decrease until the Hill administrability concerns dominate. Where that point lies, however, is for another case.
The district court also suggested the law was narrowly tailored to serve purposes different from the existing solicitation and communication laws. It stated the existing laws “aim[ ] to punish those who have already committed the crime of solicitation,” while the “challenged statute, by contrast, aims to prevent and deter the sexual exploitation of minors by barring certain sexual offenders from entering a virtual world where they have access to

4

Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694 (2013) 89 A.L.R.6th 771

*701 minors” (emphases in original). The state continues this argument on appeal. The immediate problem with this suggestion is that all criminal laws generally “punish” those who have “already committed” a crime. The punishment is what “prevent[s] and deter[s]” undesirable behavior. Thus, characterizing the new statute as preventative and the existing statutes as reactive is questionable. The legislature attached criminal penalties to solicitations in order to prevent conduct in the same way decade-long sentences are promulgated to deter repeat drug offenses. Perhaps the state suggests that prohibiting social networking deprives would-be solicitors the opportunity to send the solicitation in the first place. But if they are willing to break the existing anti-solicitation law, why would the social networking law provide any more deterrence? By breaking two laws, the sex offender will face increased sentences; however, the state can avoid First Amendment pitfalls by just increasing the sentences for solicitation—indeed, those laws already have enhanced penalties if the defendant uses a computer network. See Ind.Code §§ 35–42–4– 6(b)(3); 35–42–4–13(c).
The state also makes the conclusory assertion that “the State need not wait until a child is solicited by a sex offender on Facebook.” Of course this statement is correct, but the goal of deterrence does not license the state to restrict far more speech than necessary to target the prospective harm. Moreover, the state never explains how the social network law allows them to avoid “waiting.” “That the [state’s] asserted interests are important in the abstract does not mean ... that [its regulation] will in fact advance those interests.” See Turner, 512 U.S. at 664, 114 S.Ct. 2445. The state “must do more than simply posit the existence of the disease sought to be cured,” and “the regulation [must] in fact alleviate these harms in a direct and material way.” Id. (internal quotations omitted). The state bears this burden, and it does not explain how the law furthers this interest.
Despite the infirmity of the statute in this case, we do not foreclose the possibility that keeping certain sex offenders off social networks advances the state’s interest in ways distinct from the existing justifications. For example, perpetrators may take time to seek out minors they will later solicit. This initial step requires time spent on social networking websites before the solicitation occurs. In the future, the state may argue that prohibiting the use of social networking allows law enforcement to swoop in and arrest perpetrators before they have the opportunity to send an actual solicitation. This argument remains speculative. And it is uncertain whether such a law could advance this interest without burdening a “substantially broader” than necessary group of sex offenders who will

not use the Internet in illicit ways.6 See *702 Ward, 491 U.S. at 800, 109 S.Ct. 2746. But perhaps such a law could apply to certain persons that present an acute risk—those individuals whose presence on social media impels them to solicit children. Currently, the state presents no evidence that covered individuals present this sort of risk. We speculate only to make clear that this decision should not be read to limit the legislature’s ability to craft constitutional solutions to this modern-day challenge.
The district court also cited Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), for the proposition that the state may “ensur[e] that sex offenders do not place themselves in these potentially dangerous situations.”7 However, Hendricks is inapposite. It rejected a substantive due process challenge to a Kansas statute permitting the state to commit persons that are “likely to engage in sexually violent behavior.” Id. at 351, 117 S.Ct. 2072 (quoting Kan. Stat. Ann. § 59–29a01 (1994)). The case did not present a First Amendment challenge. Notwithstanding, the Hendricks statute proceeds cautiously and is far more targeted than the Indiana statute here. The Hendricks law provided respondents a number of procedural safeguards before a trial in which the state had to prove beyond a reasonable doubt that petitioners had a “mental abnormality” that made them “likely to engage in the predatory acts of sexual violence.” Id. at 352, 117 S.Ct. 2072. They were also entitled to regular review after their confinement to ensure they still met the act’s criteria. Id. at 353, 117 S.Ct. 2072. We do not suggest that these procedures are a prerequisite to a First Amendment deprivation; Hendricks-style civil commitment presents a far greater deprivation of liberty than banning social networking. But Hendricks nevertheless illuminates the imprecision of the Indiana statute. Unlike the individualized assessment that ensured each respondent was “likely” to commit the redressable evil, the Indiana legislature imprecisely used the sex offender registry as a universal proxy for those likely to solicit minors. There may well be an appropriate proxy, but the state has to provide some evidence, beyond conclusory assertions, to justify the regulation.
This case also differs from our decision in Doe v. City of Lafayette, 377 F.3d 757 (2004) (en banc). That case involved an individual with an extensive history of sex offenses against children, who admitted he was going to the city parks “cruising” and “looking” for children. Id. at 759–60. The city issued a unilateral order banning the plaintiff from the city parks without a hearing. Id. at 760. Unlike this case, the regulation did not implicate the First Amendment so we upheld it under the deferential rational basis review. Id. at 764, 773. Other laws restricting sex offenders’ proximity to schools or parks have been

5

Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694 (2013) 89 A.L.R.6th 771

similarly upheld under rational basis review because courts have found they do not implicate the First Amendment or involve a fundamental right. See, e.g., Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (holding that the Alaska Sex Offender Registration Act did not violate the Ex Post Facto Clause); Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003) (holding that the public disclosure provision of Connecticut’s sex offender registration law did not violate the Due Process Clause); *703 Doe v. Miller, 405 F.3d 700 (8th Cir.2005) (holding residency restriction within two thousand feet of school or child care facility constitutional under rational basis review).8
Finally, this opinion should not be read to affect district courts’ latitude in fashioning terms of supervised release, 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment[.]”), or states from implementing similar solutions. Our penal system necessarily implicates various constitutional rights, and we review sentences under distinct doctrines. Terms of supervised release, for instance, must be “reasonably related to the [sentencing] factors” and “involve[ ] no greater deprivation of liberty than is reasonably necessary.” § 3583(d)(1)-(2). Thus, in assessing the need for incapacitation, see § 3553(a)(2)(C), a court could conceivably limit a defendant’s Internet access if full access posed too high a risk of recidivism. United States v. Scott, 316 F.3d 733, 736–37 (7th Cir.2003). The alternative to limited Internet access may be additional time in prison, which is surely more restrictive of speech than a limitation on electronics. This
Footnotes

option is not without limits, see United States v. Holm, 326 F.3d 872, 878–79 (7th Cir.2003) (holding total Internet ban was too broad and compiling similar cases from other circuits), but terms of supervised release or parole may offer viable constitutional alternatives to the blanket ban—imposed outside the penal system—in this case.
We conclude by noting that Indiana continues to possess existing tools to combat sexual predators. The penal system offers speech-restrictive alternatives to imprisonment. Regulations that do not implicate the First Amendment are reviewed only for a rational basis. The Constitution even permits civil commitment under certain conditions. But laws that implicate the First Amendment require narrow tailoring. Subsequent Indiana statutes may well meet this requirement, but the blanket ban on social media in this case regrettably does not.
III. Conclusion
For the foregoing reasons, we REVERSE the district court’s decision, and REMAND with instructions to enter judgment in favor of Doe and issue the injunction.
All Citations
705 F.3d 694, 89 A.L.R.6th 771

*

The Honorable John J. Tharp Jr., United States District Court for the Northern District of Illinois, sitting by designation.

1

A “ ‘social networking web site’ means an Internet web site that: (1) facilitates the social introduction between two or more

persons; (2) requires a person to register or create an account, a username, or a password to become a member of the web site

and to communicate with other members; (3) allows a member to create a web page or a personal profile; and (4) provides a

member with the opportunity to communicate with another person. The term does not include an electronic mail program or

message board program.” § 35–42–4–12(d).

2

An “ ‘instant messaging or chat room program’ means a software program that requires a person to register or create an

account, a username, or a password to become a member or registered user of the program and allows two or more members or

authorized users to communicate over the Internet in real time using typed text. The term does not include an electronic mail

program or message board program.” § 35–42–4–12(c).

3

He sued the City of Indianapolis as well, but it was dismissed by stipulation.

4

The state argues that the district court’s citation to a report (that was not in the record) deserves deference on appeal. However,

6

Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694 (2013) 89 A.L.R.6th 771

only adjudicative facts are entitled to the clearly erroneous standard of review. Adjudicative facts concern the parties’ conduct and are the facts that normally go to a jury. They constitute the facts that appellate courts do not disturb on appeal. The report, on the other hand, contains legislative facts. They are facts in the literal sense, but they come from outside the case and bear on the prudence or meaning of a legal rule. See Fed.R.Evid. 201(a); Fed.R.Evid. 201 Advisory Committee Note to Subdivision (a) of 1972 Proposed Rules.

5

To be sure, the ages in the existing statutes are different. But Indiana could adjust that aspect of the laws as it sees fit.

6

This example brings the law’s overbreadth concerns to the surface. Today, we facially invalidate the Indiana law because it is not

narrowly tailored to serve the state’s interest and any plaintiff could show as much. See Sec’y of State of Md. v. Joseph H. Munson

Co., 467 U.S. 947, 967 n. 13, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) (“[L]egislation repeatedly has been struck down ‘on its face’

because it was apparent that any application of the legislation would create an unacceptable risk of the suppression of ideas.”

(second quotation omitted)); e.g., United States v. Playboy Entm’t Grp., 529 U.S. 803, 806–07, 120 S.Ct. 1878, 146 L.Ed.2d 865

(2000). But assuming arguendo that Doe’s (or a different plaintiff’s) speech is unprotected or the law could constitutionally be

applied to them, it still inexplicably applies to sex offenders whose crimes did not involve the Internet or children. As such, a

plaintiff could still bring a successful facial challenge because the law “applie[s] unconstitutionally to others, in other situations

not before the court” Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); e.g., United States v.

Stevens, 559 U.S. 460, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010).

7

The district court actually cited United States v. Comstock, 559 U.S. 460, 130 S.Ct. 1949, 1954, 176 L.Ed.2d 878 (2010), but

Comstock was merely an extension of Hendricks and its progeny to the federal government.

8

The only court (as far as we know) to analyze a sex offender statute under the First Amendment was the Tenth Circuit in Doe v.

City of Albuquerque, 667 F.3d 1111 (10th Cir.2012). The court struck down a local library rule banning registered sex offenders

after concluding the library was a limited public forum and the ban implicated the First Amendment. The case is unique,

however, in that the city offered no evidence supporting its ban. Instead, it erroneously argued that it had “no burden” under

Ward. See id. at 1131–32. Thus, the court left open the possibility that other restrictions could survive First Amendment scrutiny.

End of Document

=

7