Doe v. Kentucky ex rel. Tilley

283 F. Supp. 3d 608
CourtDistrict Court, E.D. Kentucky
DecidedOctober 20, 2017
DocketCivil No: 3:15–cv–14–GFVT
StatusPublished
Cited by7 cases

This text of 283 F. Supp. 3d 608 (Doe v. Kentucky ex rel. Tilley) is published on Counsel Stack Legal Research, covering District Court, E.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe v. Kentucky ex rel. Tilley, 283 F. Supp. 3d 608 (E.D. Ky. 2017).

Opinion

I

John Doe, a resident of Fayette County, was convicted in 2007 of possessing child pornography. As a result of his conviction, he is now subject to the myriad provisions of Kentucky's Sex Offender Registration Act, KRS § 17.510, et seq. A number of provisions impact Doe and other offenders' social media use, regardless of the conduct underlying their mandated registration as sex offenders. First, KRS § 17.546 governs registrants' use of social media as follows:

No registrant shall knowingly or intentionally use a social networking Web site or an instant messaging or chat room program if that Web site or program allows a person who is less than eighteen (18) years of age to access or use the Web site or program.

See KRS § 17.546(2). That statute also includes a set of definitions:

(a) "Instant messaging or chat room program" means a software program that allows two (2) or more persons to communicate over the Internet in real time using typed text; and
(b) "Social networking Web site" means an Internet Web site that:
1. Facilitates the social introduction between two (2) or more persons;
2. Allows a person to create a Web page or a personal profile; and
3. Provides a person who visits the Web site the opportunity to communicate with another person.

*611KRS § 17.546(1). Any sex offender who violates KRS § 17.546(2) faces Class A misdemeanor charges. See KRS § 17.546(4).

Additionally, KRS § 17.510 requires Doe and other registered sex offenders to provide all of their e-mail addresses, instant messaging names, or "other Internet communication name identities" to their local probation and parole offices. KRS § 17.510(10)(c). The Justice and Public Safety Cabinet is permitted to intermittently verify these name identities, and if the Cabinet discovers that a sex offender registrant failed to provide a particular identity, the Cabinet may notify the relevant County or Commonwealth's Attorney Office. See KRS § 17.510(13). A sex offender who violates KRS § 17.510(10)(c) is considered guilty of a Class D felony for his or her first violation, or guilty of a Class C felony for any subsequent violations. See KRS §§ 17.510(11) - (12).

John Doe argues each of these statutes impermissibly abridges his right to free speech under the First Amendment.2 Doe initially challenged the statutes described above by way of a motion for preliminary injunction filed against the Secretary of the Justice and Public Safety Cabinet, the Fayette County Attorney, and the Fayette County Commonwealth's Attorney, all sued in their official capacities.3 But the parties later consolidated their briefing, and they now ask the Court to consider Doe's request as one for permanent injunctive relief. [See R. 24.] The Court heard oral argument on the matter, subsequently stayed the case pending a potentially relevant Sixth Circuit Court of Appeals ruling in Does # 1-5 v. Snyder , 834 F.3d 696 (6th Cir. 2016), and then further reserved ruling while the United States Supreme Court resolved Packingham v. North Carolina , 582 U.S. ----, 137 S.Ct. 1730, 198 L.Ed.2d 273 (2017). The Court, now aided by binding Supreme Court precedent, grants Doe's request for injunctive relief.

II

A

The Court's analysis of KRS § 17.546(2) is informed almost entirely by Packingham v. North Carolina. See --- U.S. ----, 137 S.Ct. 1730, 198 L.Ed.2d 273. In that case, the Supreme Court considered a North Carolina statute not terribly distinct from KRS § 17.546. Prior to the high court's Packingham opinion, North Carolina law prohibited all registered sex offenders from "access[ing] a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages." See N.C. Gen. Stat. Ann. §§ 14-202.5 ; Packingham , 137 S.Ct. at 1733. Upon review, the Supreme Court invalidated this statute and its accompanying definitions as an "unprecedented" burden on sex offender registrants' First Amendment speech. Packingham , 137 S.Ct. at 1737.

Writing for the majority, Justice Anthony Kennedy explained that internet use is clearly encompassed by the First Amendment. "While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for *612the exchange of views, today the answer is clear. It is cyberspace-the vast democratic forums of the Internet in general, and social media in particular." Id. at 1735 (internal quotation marks and citation omitted). Although the Supreme Court did not analyze in detail the level of scrutiny to apply upon review,4

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Cite This Page — Counsel Stack

Bluebook (online)
283 F. Supp. 3d 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-kentucky-ex-rel-tilley-kyed-2017.