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Judge overturns parts of Nebraska sex offender law

posted Oct 15, 2009, 8:02 AM by Lara K   [ updated Nov 4, 2012, 9:38 AM ]
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A federal judge has struck down parts of Nebraska's new sex offender laws, which would have made it a crime for some offenders to use social networking sites and require them all to notify the state whenever they post on the Internet.

Senior U.S. District Judge Richard Kopf said it wasn't his prerogative to second-guess Nebraska's policy judgments, so long as they are within constitutional parameters.

And he earlier upheld parts of the state's new sex offender registration laws despite personally believing them to be "both wrongheaded and counterproductive."

But, Kopf said, "for three sections of Nebraska's new sex offender registry law, Nebraska has violently swerved from that path."

Specifically would have:

* made it illegal for sex offenders whose crimes were against children to use social networking sites, instant messaging or chat rooms;

* required all sex offenders to subject themselves to searches and monitoring of their computers and cell phones; and

* to tell the government every time they posted on Internet sites or blogs.

The laws, the most recent changes to the state's Sex Offender Registration Act, were passed in 2009 but put on hold as a result of the lawsuit before they were to go into effect in 2010.

It was sex offenders themselves who sued. At a trial before Kopf in July, they testified one after another about how the changes would impact them and, in many cases, their work.

On Thursday, Omaha attorney Stu Dornan, whose firm represented the men and women challenging the laws as John and Jane Doe, hailed this week's ruling, saying the laws had left people on the Nebraska Sex Offender Registry unsure whether they could text or email family members or even turn on a computer.

He said Kopf's ruling upheld the Constitution as a document that protects even sex offenders, who are viewed by many Nebraskans, as Kopf said in his order, as the lepers of the 21st century.

"The Constitution, if it does not protect this group of people, it does not protect any of us," Dornan said.
An appeal seems likely, though.

As scathing as Kopf's 73-page order was at times, the judge did also set out a pathway for Nebraska lawmakers to cure it.

"Plainly put: Concentrate on demonstrated risk rather than speculating and burdening more speech than is necessary -- use a scalpel rather than a blunderbuss," the judge said.

As it was, Kopf said Nebraska lawmakers had gone too far, putting a stake through the heart of the First Amendment and gutting protections against suspicion-less searches.

He said the ban for child sex offenders alone had the potential to restrict them from communicating with hundreds of millions, perhaps billions, of adults and their companies, even if the communication had nothing to do with minors.

And Kopf found -- perhaps most surprisingly -- that the Legislature's intent was to punish sex offenders, based on comments made by State Sen. Scott Lautenbaugh, who introduced the bill, and Corey O'Brien, the man in the Nebraska Attorney General's Office who drafted it.

"The truth is the hand-picked introducer of the bill that spawned these extraordinary statutes ... essentially admitted the punitive intent of these provisions," Kopf said.

The bill's stated purpose was to protect children from sexual predators by strengthening penalties and bringing the state's laws up to date.

But in a Judiciary Committee session on the record, Lautenbaugh said he had a "revulsion" for people convicted of these crimes and admitted some provisions were harsh and restrictive with the purpose of limiting and tracking what they're using the Internet for and to avoid a repeat offense.

At trial, the attorney general's office argued that the laws did not keep offenders from using the Internet entirely.
But Kopf said the Nebraska Legislature went far beyond its purported purpose when it criminalized the provisions.

"These statutes retroactively render sex offenders, who were sentenced prior to the effective date of these statutes, second-class citizens," he said. "They are silenced. They are rendered insecure in their homes."

He said lawmakers could draft a statute that required convicted sex offenders to provide Internet addresses that the state could track, rather than requiring sex offenders to constantly update the state about when and where they post, for instance.

The state also could narrow social networking and chatroom restrictions to offenders who committed their crimes using the Internet, he said.

"There is not the slightest reason to believe that such a targeted solution would not be sufficient to address Nebraska's legitimate, rather than speculative, concerns for children," Kopf said.

Reached Thursday afternoon, Lautenbaugh declined to comment on Kopf's decision, saying he hadn't had time yet to read the order.

"I really don't have anything to say," he said.

Shannon Kingery, a spokeswoman for Attorney General Jon Bruning, said his office respectfully disagreed with the court's decision.

"We are reviewing the ruling and assessing our options," she said.