Before FLAUM and TINDER, Circuit Judges, and THARP, District Judge.
FLAUM, Circuit Judge.
A recent Indiana statute prohibits most registered sex offenders from using social networking websites, instant messaging services, and chat programs. John Doe, on behalf of a class of similarly situated sex offenders, challenges this law on First Amendment grounds. We reverse the district court and hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.
Indiana Code § 35-42-4-12 prohibits certain sex offenders from “knowingly or intentionally us[ing]: a social networking web site” [footnote omitted] or “an instant messaging or chat room program” [foot note omitted] that “the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program.” § 35-42-4-12(e) (violation constitutes a Class A misdemeanor but subsequent violations constitute Class D felonies). The law applies broadly to all individuals required to register as sex offenders under Indiana Code § 11-8-8, et seq., who have committed an enumerated offense. § 35-42-4-12(b)(1)-(2). The law does not differentiate based on the age of victim, the manner in which the crime was committed, or the time since the predicate offense. Subsection (f) provides an express defense if the individual did not know the website allowed minors or upon discovering it does, immediately ceased further use. § 35-42-4-12(f). Subsection (a) exempts persons convicted of so-called Romeo and Juliet relationships where the victim and perpetrator are close in age and had a consensual relationship. § 35-42-4-12(a).
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Turning to the Indiana statute, the state agrees there is nothing dangerous about Doe’s use of social media as long as he does not improperly communicate with minors. Further, there is no disagreement that illicit communication comprises a minuscule subset of the universe of social network activity. As such, the Indiana law targets substantially more activity than the evil it seeks to redress. Even the district court agreed with this sentiment, stating the law “captures considerable conduct that has nothing to do” with minors. Indiana prevents Doe from using social networking sites for fear that he might, subsequent to logging on to the website or program, engage in activity that Indiana is entitled to prevent. But like the states in Schneider andMartin, Indiana has other methods to combat unwanted and inappropriate communication between minors and sex offenders. For instance, it is a felony in Indiana for persons over twenty-one to “solicit” children under sixteen “to engage in: (1) sexual intercourse;(2) deviate sexual conduct; or (3) any fondling intended to arouse or satisfy the sexual desires of either the child or the older person.” Ind. Code § 35-42-4-6 (it is also a felony for person between the ages of eighteen to twenty-one to solicit children under fourteen). A separate statute goes further. It punishes mere “inappropriate communication with a child” and communication “with the intent to gratify the sexual desires of the person or the individual,” Ind. Code § 35-42-4-13 (applies to persons over twenty-one communicating with children fourteen or younger). Significantly, both statutes have enhanced penalties for using a computer network and better advance Indiana’s interest in preventing harmful interaction with children (by going beyond social networks). They also accomplish that end more narrowly (by refusing to burden benign Internet activity). That is, they are neither over- nor under-inclusive like the statute at issue here.
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The state also makes the conclusory assertion that “the State need not wait until a child is solicited by a sexoffender on Facebook.” Of course this statement is correct, but the goal of deterrence does not license the state to restrict far more speech than necessary to target the prospective harm. Moreover, the state never explains how the social network law allows them to avoid “waiting.” “That the [state’s] asserted interests are important in the abstract does not mean . . . that [its regulation] will in fact advance those interests.” See Turner, 512 U.S. at 664. The state “must do more than simply posit the existence of the disease sought to be cured,” and “the regulation [must] in fact alleviate these harms in a direct and material way.” Id. (internal quotations omitted). The state bears this burden, and it does not explain how the law furthers this interest.