May 31, 2012

Why Sex Offenders Have No Right to Facebook

In this article the writer claims that, the ACLU lawsuit seeking access to venues commonly used to exercise one's right to freedom of speech, must fail because the venue is a PRIVATE venue. In response it makes me wonder when PRIVATE venues became EXEMPT from constitutional claims, has there ever been a PRIVATE club that excluded women and after suit had to admit them? Other examples exist as well. This case does raise an even newer issue of first impression being, can a PRIVATE venue ever be considered so big that it is effectively a PUBLIC venue? Further, when the Government extensively uses a PRIVATE venue does that limit freedom of speech for those excluded? I wonder????
5-31-2012 National:

Convicted sex offenders are suing to use social media based on their First Amendment rights, sparking debates over whether Facebook is a right.

Right now, convicted sex offenders are often prohibited from using Facebook, LinkedIn and a number of other social networks as part of their sentencing nationwide, and they banned outright from social networks in several states. But lawsuits in Louisiana, Nebraska and Indiana focus on whether these social media bans are unconstitutional.

The ACLU is helping sex offenders put together cases arguing these bans are tantamount to limiting free speech, and are drawing a comparison between keeping someone off Facebook and barring them from writing in or starting a newspaper or participating in another form of public discussion.

Internet sites and self-published commentary fall under the same First Amendment protections as magazines, books and newspapers, according to the Supreme Court case Reno vs ACLU.

In addition to leveraging the Supreme Court ruling, the ACLU believes a recent court case in Louisiana could serve as precedent, in which a judge struck down a similar law barring sex offenders from social media, saying the law is too broad.

If the ACLU's lawyers successfully win the argument that social media is akin to a mainstream public forum, they may have a solid case based on the free speech precedent. The linchpin of the organization's argument stems from the idea that social media is an essential form of public communication, which is arguably true, and why they have a reasonable shot of winning these cases.

As much as sex offenders are odious, the Constitution protects their right to free speech, so blocking them from access to a vital public forum would fall under the umbrella of violating their rights. It would be the same as prohibiting someone from self-publishing a pamphlet, which explicitly violates the freedom of expression awarded by the First Amendment. If Facebook functioned in the same way as a newspaper, magazine or book, then the ban would be Constitutionally wrong, hands down.

However, the AcLU's argument fails to recognize Facebook isn't a static published document. Instead, it's an avenue with a significant private component in addition to its public features. Along with other social media sites, it is a dynamic collection of services that include public updates, but also private digital meet-ups, which is often how sex offenses begin.

Facebook and other social media sites generate their power from their ability to draw protective circles around their users, however fragile. Also, unlike publicly distributed printed materials, they allow and encourage private chatting, private messaging, private picture sharing.

They mix potentially public opportunities for speech with plenty of private moments, and letting sex offenders on Facebook carries the risk that they will message and manipulate people on the private side of the website.

Sex offenders could miss out on a part of the social experience by being banned from social networks, but they will still have plenty of forums to exercise their rights to free speech that do not include opportunities to connect with the vulnerable members of society they've been convicted for abusing.

Sex offenders aren't allowed to move near schools and must register on a public database, which circumscribes their personal freedom to bolster public safety. This makes life harder for them, but lawmakers decided these limitations are the best way to strike a balance between security and individual freedoms.

The fight for access to Facebook is part of a larger debate surrounding sex offenders, particularly over warnings that sex offenders are likely to repeat their offenses. This assumption is now cast in doubt due to numerous statistical analyses.

Frank Zimring, a law professor at UC Berkeley, dispelled the myth, noting, "The recidivism rates of child molesters are lower than in other crimes." Zimring's description of the relatively low repeat offense rate for sex offenders is backed up by the Department of Justice and sex crime researchers from Public Safety Canada.

Despite this, offenders' personal freedom even after serving time is still curtailed, and will likely remain so. Similarly, the states are under no obligation to let convicted sex offenders on Facebook.

Facebook's private capabilities make it a unique form of communication, and navigating the borders between its increasingly important public role and its private functions will likely continue to inspire debate in and out of the courtroom. But the website's functions are too entwined with private messaging and chatting to discount it as a forum capable of facilitating behavior typical of sex criminals -- communicating through social media.

The Journal of Adolescent Health found a significant number of sex crimes have a social media component, and as more children join Facebook and use social networking, it makes sense to keep this powerful tool out of potentially predatory hands. ..Source.. by Kate Knibbs

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