Sex Offender Punishment: No Facebook

(By Andrew MacKie-Mason)

According to the ABA Journal, the district attorney for San Francisco recently proposed a bill to ban registered sex offenders from social networking sites such as Facebook. (Then again, perhaps he's doing them a favor. Who wants to use Facebook anyways?)

The article raises some questions about the constitutionality of the law:

But Chris Hoofnagle, director of the Berkeley Center for Law & Technology's information privacy programs told the San Francisco Examiner's Under the Dome blog that he thinks the law might not pass constitutional muster.

“Cutting a class off from a very important communication medium could implicate First Amendment issues," Hoofnagle told the blog. “For instance, what if a law was proposed that sex offenders couldn’t use the telephone, or the mail? I mean that clearly would be overbroad and problematic. Well, social networking sites are the new mail, right?”

I think the constitutional issues are much broader than that, though. The Constitution bans ex post facto laws, and there's a general principle in law against retroactive punishment. This would seem to be exactly that. People are being punished (prohibited from participating in a standard activity) for a crime they committed before the law went into effect.

There's also an amusing quote in the article:

"The carrot is don't get on these sites, and the stick is we will prosecute you," Harris told the Chronicle. "In my experience, these types of predators are a slimy group, and they don't want to go to jail, and what we're telling them is that if you go online and start chatting with my 12-year-old niece, you're going to jail."

It isn't clear from the article, but I feel like I have to trust that Harris knows that this isn't a "carrot and stick" proposal. I have to trust that she's just trying to make a point (i.e. that there is no carrot) because otherwise I'll lose faith in the American legal educational system.

Another policy point that is rarely brought up in these debates is the harm it does to the educational opportunities for minors. As far as I can tell, these laws are aimed at banning communication between minors and sex offenders. That's over broad in two ways. First, many "sex offenders" were convicted of minor offenses that don't justify the draconian punishments levied against them. Second, many minors are old and mature enough to communicate maturely with sex offenders. It could even be an educational experience: a student writing about the effects of harsh sex offender punishment laws would get valuable first hand knowledge by communicating with someone who has actually experienced those laws...but can't, because the paternalistic state has told the minor that he can't handle it.

See my previous posts on related issues:
Update: Retroactive Sex Offender Laws
Sex Offender Registration--Retroactive?
United Kingdom: Sex Offender Registry Appeal