The Duke Law & Tech Review iBlawg has two very interesting posts on whether MySpace’s decision to block convicted sex offenders from using their services violates either the right to free speech or to due process. As to free speech, the author writes:

The basis for asking if the proposed legislation and MySpace’s actions are a violation of the First Amendment stems from the Supreme Court case John Ashcroft v. Free Speech Coalition. 535 U.S. 234 (2002).In light of Free Speech Coalition, it appears that Congress would have to make a solid argument that all written works from a former sex offender to a teenager are patently offensive in light of community standards and is therefore unprotected speech. The difficulty with this argument is that it depends on what the sexual offender is writing on the social networking website, whether he or she is trying to arrange a meeting with the teenager, and whether the former sex offender is still a danger to the community.

Moreover, the speech that is in question is not harmful in itself; it is the later potentially unlawful actions that are potentially dangerous, indicating the legislation may be overly broad. The only way such speech can be differentiated from the speech in Free Speech Coalition is if a distinction is made between speech produced by non-former sex offenders and speech produced by sex offenders. If made, this distinction raises the question of whether this different treatment violates a sex offender’s right to due process.

On Due Process, she writes:

The Supreme Court has only ruled on two cases regarding sex offender registries and only one of those cases specifically discussed due process.1 In Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003), a Connecticut statute provided for public disclosure of the state’s sex offender registry.Even in the wake of Doe, there are two arguable reasons for why sex offenders are being denied due process rights when banned from social online communities without any determination of their current dangerousness. First, the scope of Doe is very narrow. The Court ruled that Plaintiff already had a hearing when it was determined that he was a sex offender and that the Connecticut statute required the registration of all convicted sex offenders.

Second, in Doe, the online registry was solely for the purpose of public awareness.15 Here, third parties are using the registry to block certain individuals from Internet sites, and such a distinction may change the analysis.

There is more in-depth analysis in the full posts, so I encourage you to read them. I’ve long maintained that Doe ruled on nothing more than procedural due process and the substantive issue was not touched. SCOTUS has yet to consider whether any of these “requirements” or “restrictions” geared toward sex offenders violate substantive due process.

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