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Doe v. Commonwealth ex rel. Tilley

United States District Court, E.D. Kentucky, Central Division, Frankfort

October 20, 2017

JOHN DOE, Plaintiff,
v.
COMMONWEALTH OF KENTUCKY ex rel. JOHN TILLEY, et al., Defendants.

          MEMORANDUM OPINION & ORDER

          GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE

         John Doe is a registered sex offender. As such, he is bound by the numerous requirements set forth in Kentucky's Sex Offender Registration Act, which seeks to govern where Doe lives, works, recreates, and more. Certain Kentucky restrictions particularly impact Doe's use of the internet. For example, the law prohibits Doe from using any social networking websites that may be accessed or used by minors. KRS § 17.546(2). Doe must provide his local probation office with all of his email and other internet name identities. And he must register any new internet name identities with his local probation office “on or before the date of the change or use or creation of the new identity.” KRS § 17.510(10)(c).

         Doe, joining a host of plaintiffs nationwide challenging similar state statutes, has asked the Court to invalidate the Kentucky Sex Offender Registration Act's social media provisions because they abridge his First Amendment right to free speech.[1] After considering the United States Supreme Court's recent ruling in Packingham v. North Carolina, 582 U.S.___, 137 S.Ct. 1730 (2017), as well as the vague language of the Commonwealth's statutory scheme, the Court GRANTS Doe's motion for a permanent injunction.

         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.

KRS § 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) ...


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