On January 12, 2017, a registered sex offender living in Marion County, Indiana filed this class action in the Southern District of Indiana under 42 USC § 1983. The plaintiffs claimed that an Indiana law violated his First Amendment rights because it made it a crime for a registered sex offender to knowingly use a social networking website or instant messaging chatroom if persons under the age of eighteen had access to the platform or website. Represented by the ACLU of Indiana, the plaintiffs requested injunctive and declaratory relief against the City of Indianapolis and the Marion County prosecutor to enjoin them from enforcing this law. The class also requested attorney’s fees and the plaintiff was allowed to proceed anonymously.

The City of Indianapolis was dismissed as a defendant on February 27, 2012 because all parties agreed that the City was not necessary to adjudication of the matter. The City agreed to abide by any later rulings by the court about the statute and the parties paid their own fees and costs.

On March 6, 2012, the court certified a class for the purpose of the claim that the Indiana statute was unconstitutional. Class members included: "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)."

Shortly after class certification was granted, the plaintiff class moved for a preliminary injunction on March 14. The parties filed trial briefs pending hearings on the motion and ultimately agreed to merge the hearing on the preliminary injunction motion with the bench trial. Therefore, the hearing would decide whether the plaintiffs were entitled to declaratory relief and a permanent injunction that would enjoin the State's enforcement of the statute.

On June 22, 2012, the court denied the motion. Because the statute was content neutral, the court found the statute passed the test as narrowly tailored to protect a government interest and left open alternative channels for communication. The opinion noted that the vastness of the internet allowed the plaintiff sufficient opportunity to exercise his rights: for example, the plaintiff was not barred from using websites like LinkedIn. In an era of advancing technology, the court acknowledged the government's interest in protecting the "virtual playground" of social networking sites from "sexual predators" and the statute was narrowly tailored to that interest.

On June 26, 2012, the plaintiff appealed to the Seventh Circuit, which reversed and remanded the decision in a 3-0 opinion (Judges Joel Flaum, Tinder, Tharp). 705 F.3d 694 (7th Cir. 2013). The three-judge panel found that the statute was overly-broad and restricted too much innocent speech. The Court declared the Indiana statute unconstitutional as violating the First Amendment and reversed and remanded with instructions to enter the injunction.

On remand, the district court entered judgment in favor of the plaintiff class on March 28, 2013. The permanent injunction prevented the defendant from enforcing the law against any member of the class. The parties settled on an unknown amount of attorneys’ fees and the case is now closed.

Elizabeth Johnson - 01/31/2019


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