Indiana Law Review Not in My Library: An Examination of State and Local Bans of Sex Offenders from Public Libraries Jennifer Ekblaw* Introduction "People who prey on our children are among the most dangerous criminals we face. They target our most precious and our most vulnerable citizens . . . ."' Presented with these risks, most individuals favor passage of additional sex offender restrictions in their communities. Hence, political leaders in Albuquerque, New Mexico,^ New Bedford, Massachusetts,^ Quincy, Massachusetts,"^ Methuen, Massachusetts,^ Stephenville, Texas,^ Rowan County, North Carolina,^ and the State of lowa^ have attempted to protect children by prohibiting sex offenders from entering public libraries. However, these restrictions raise First Amendment issues. The First Amendment provides, "Congress shall make no law . . . abridging the freedom of speech."^ Within the freedom of speech, the Supreme Court recognizes not only the right of speakers to distribute information, but also a corresponding right of others to receive information.^^ Subsequent Court decisions have recognized the right to receive information^' and determined that this right includes a right of some level of public library access.'^ Therefore, sex * J.D. Candidate, 2011, Indiana University School of Law—Indianapolis; M.L.S. Candidate, 201 1, Indiana University—Indianapolis; B.S., Sage College of Albany, Albany, New York. I would like to thank Professor R. George Wright for his guidance during this project and Danielle Tucker and Kyli Willis for their helpful suggestions. My sincerest gratitude goes out to my family for all of their support and to my boyfriend, Jeff, for all the love and encouragement he provided throughout the writing process. 1 . Press Release, John Lynch, Governor ofN.H., Governor Lynch Asks House Committee to Help Protect Children from Online Predators (Apr. 3, 2008), available at http://www.govemor. nh.gov/media/news/2008/040308.html. 2. Albuquerque, N.M., Exec. Instruction No. 25: Registered Sex Offenders in Public Libraries (Sept. 16, 2008) (on file with author) [hereinafter Original Albuquerque, N.M., Exec. Instruction No. 25]. 3. New Bedford, Mass., Code §§ 17-26 to -27 (2008). 4. See Simon King, Quincy Mayor Thomas Koch Signs Anti Sex Offender Law, QuiNCY Cove, Jan. 13, 2010 (on file with author). 5. Methuen, Mass., Mun. Code ch. 27 (2008). 6. Stephenville, Tex., Code §§ 130.80-.86 (2007). 7. Rowan Cnty., N.C, Code § 15-3 (2008). 8. Iowa Code Ann. § 692A. 113 (West, Westlaw through May 19 of 201 1 Reg. Sess.). 9. U.S. Const, amend. I. 10. Martin v. City of Struthers, 319 U.S. 141, 143 (1943). 11. Stanley v. Georgia, 394 U.S. 557, 564 (1969); Griswold v. Connecticut, 381 U.S. 479, 482(1965). 12. Kreimer v. Bureau of Police, 958 F.2d 1242, 1255 (3d Cir. 1992). 920 INDIANA LAW REVIEW [Vol. 44:919 offenders have a First Amendment right to access public libraries. ^^ Nonetheless, the right to receive information and the associated right to access public libraries are not absolute;'"^ they must be balanced with the government's interest in protecting children. ^^ Courts will uphold a restriction under the First Amendment if the restriction does not attempt to suppress a specific message, is reasonably tailored to serve a significant government interest, and leaves open alternative avenues of expression. ^^ An examination of absolute bans of sex offenders from public libraries—embodied in state statutes, county and municipal ordinances, and municipal executive instructions—reveals that these restrictions are not sufficiently tailored and therefore violate the First Amendment.'^ Consequently, these bans should be repealed and replaced with less speech-restrictive safety precautions.'^ Part I of this Note provides background on the regulation of sex offenders after completion of their criminal sentences. Part II introduces state statutes, county and city ordinances, and city executive instructions that prohibit sex offenders from entering public libraries. Part III outlines governments' and sex offenders' competing interests. Part IV explores First Amendmentjurisprudence related to the right to access public libraries, which evolved from the right to receive information.'^ In addition, Part IV provides examples of acceptable and unacceptable restrictions on library access for all patrons as well as computer and Internet use by sex offenders. Part IV will also examine Doe v. City of Albuquerque,^^ a recent decision from the United States District Court for the District of New Mexico that struck down the initial Albuquerque ban as unconstitutional.^' Part V recommends that courts strike down the remaining bans and adopt less speech-restrictive security alternatives. 13. See id. 14. See id. 15. See New York v. Ferber, 458 U.S. 747, 756-57 (1982); Minutes of the Meeting of the Rowan Cnty. Bd. ofComm'rs 16 (Sept. 4, 2007) [hereinafter Rowan Cnty. Sept. 4, 2007 Minutes], avt?//a^/ea^http://www.co.rowan.nc.us/GOVERNMENT/Commission/MinutesandAgendas/tabid/ 447/Default.aspx (click "Minutes", then click "2000s", then click "2007", and open "cm 070904.pdf") (justifying an ordinance banning sex offenders from public libraries because it would protect children). 16. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). 17. 5"^^ m/ra Parts IV.B.3, V.A. 18. See m/ra Part V. 19. See Kreimer, 958 F.2d at 1255. 20. No. 08-cv-0 1 04 1 -MCA-LFG (D.N.M. Mar. 31,2010). 21. Mat 42. 2011] NOT IN MY LIBRARY 92 1 I. Background on Sex Offender Regulation A. Who Are Sex Offenders? Society generally views sex offenders as posing a greater risk than other criminals and believes many of them target children.^^ However, sex offenders include individuals of all ages and backgrounds, even individuals convicted of crimes lacking a sexual element.^^ When considering restrictions imposed on all sex offenders, one must remember that not everyone labeled "sex offender" is a depraved individual who presents continual risks to the public. ^'^ Sex offenders that do exemplify this stereotype are sexually violent predators (SVPs), the most dangerous class of sex offenders who exhibit a "mental disease or defect" or "a behavioral abnormality."^^ However, SVPs are not the subset of sex offenders in contact with society because most states commit SVPs to inpatient facilities.^^ Even in states such as Texas that provide outpatient treatment for SVPs, unattended children are unlikely to encounter these offenders because SVPs are prohibited from visiting public places children frequent.^^ Although these dangerous SVPs are the individuals normally associated with the term "sex offenders," they represent only a small subset of sex offenders.^^ The large, general class of sex offenders includes many subsets. One of these subsets includes child molesters.^^ Some child molesters abuse children out of convenience, but many child molesters are sexually attracted to children. ^^ The cause and development of adults' attraction to children remains unknown.^' In addition to SVPs and child molesters, there are other "sex offenders"^^ who are less likely to sexually abuse a child." Under the Adam Walsh Child 22. See John Q. LaFond, Preventing Sexual Violence: How Society Should Cope WITH Sex Offenders 6-7 (2005). 23. See, e.g., 42 U.S.C. § 1691 1(7) (2006) (establishing kidnapping or false imprisonment by a non-parent as offenses requiring sex offender registration). 24. See infra text accompanying notes 32-40. 25 . See Ronnie Hall, Note, In the Shadowlands: Fisher andthe Outpatient Civil Commitment of "Sexually Violent Predators" in Texas, 13 Tex. WesleyanL. Rev. 175, 186 (2006). 26. See id. 27. See id. at 188 (citing one of the provisions SVPs must adhere to: "I will not go to schools, parks, swimming pools, movie theaters, public libraries, amusement parks, arcades or malls."). 28. In 2002, only 2478 Americans were in SVP facilities. See LaFond, supra note 22, at 144. 29. See R. BaRRI FLOWERS, SEX CRIMES: PERPETRATORS, PREDATORS, PROSTITUTES, AND Victims 239 (2d ed. 2006). 30. Anna C. Salter, Predators: Pedophiles, Rapists, & Other Sex Offenders 69 (2003). 31. Id 32. See 42 U.S.C. § 1691 1(7) (2006). 33. See Nev. Rev. Stat. Ann. §§ 179D.1 13 to -.117 (West, Westlaw through 2010 26th 922 INDIANA LAW REVIEW [Vol. 44:9 1 9 Protection and Safety Act,^"* all states must classify non-parents who kidnap or falsely imprison a minor as sex offenders, even if the crime was not sexually motivated.^^ Consequently, a grandmother convicted of "kidnapping" her grandchildren to protect them from abusive parents would have to register as a sex offender. ^^ In many states, individuals who engage in consensual sexual relations with a minor must also register, even if the offender is barely past the age of majority.^^ Other offenders include teens who engage in "sexting." Sexting occurs when an individual sends a nude photograph of oneself via text message.^^ Prosecutors may charge teenagers caught sending or receiving nude photographs with child pornography distribution or possession, respectively.^^ If convicted, these minors who sent photos of themselves must register as sex offenders for "abusing" themselves. "^^ This simultaneous labeling ofchildren as offenders and victims indicates that the label "sex offender" has become too all-encompassing. Although sex abuse continues to be a problem, the government also needs to address this labeling issue. Legislation cannot appropriately regulate sex offenders when this group has few unifying qualities or common motivating factors. Spec. Sess.) (defining Tier I, II, and III offenders), held unconstitutional by ACLU of Nev. v. Cortez Masto, 7 1 9 F. Supp. 2d 1 258 (D. Nev. 2008); R. Karl Hanson, Who Is Dangerous and When Are They Safe? RiskAssessment with Sexual Offenders, in PROTECTING SOCIETY FROM SEXUALLY Dangerous Offenders: Law, Justice, and Therapy 63, 65 (Bruce J. Winick & John Q. LaFond eds., 2003) (discussing factors used to determine the likelihood that individual sex offenders will recidivate). 34. 42 U.S.C. §§ 16901-62 (2006 & Supp. 2009). 35. Id § 16911(7). 36. Steven J. Costigliacci, Note, Protecting Our Children from Sex Offenders: Have We Gone Too Far?, 46 Fam. Ct. Rev. 180, 185 (2008). 37. See, e.g., Ariz. Rev. Stat. § 13-3 82 1(A)(4) (201 1) (requiring sex offender registration by anyone convicted of "sexual conduct with a minor pursuant to . . . [section] 13-1405," which prohibits sexual intercourse or oral sex with someone younger than eighteen years old); Del. Code Ann. tit. 1 1, § 4121(a)(4) (West, Westlaw through 201 1 legislation) (defining a sex offender, in relevant part, as anyone who violates section 768, which criminalizes sexual contact with another person under eighteen years old). But see FLA. Stat. Ann. § 943.04354 (West, Westlaw through 201 1 legislation) (removing from the sex offender registry individuals who were forced to register for having consensual sex with someone between fourteen and seventeen years old and not more than four years younger than themselves). 38. See Mike Brunker, 'Sexting ' Surprise: Teens Face Child Porn Charges, MSNBC.COM (Jan. 15, 2009), http://www.msnbc.msn.com/id/28679588/. 39. Id 40. See id. (citing the opinion of an attorney who defends individuals charged with child pornography related crimes that "the prosecution of minors for photos they took themselves runs counter to the purpose of both state and federal child pornography laws: [pjreventing the sexual abuse of children by 'dirty old men in raincoats.'" (emphasis added)). 2011] NOT IN MY LIBRARY 923 B. Statutes Regulating Sex Offenders Federal, state, and local governments have attempted to prevent sex crimes for decades. Many states have enforced sex offender registration statutes for almost twenty years."^^ In an attempt to provide additional protection, governments subsequently adopted residency restrictions; the first state statutes were enacted in 2001.'^^ When residency restrictions also failed to prevent sex crimes, some jurisdictions implemented anti-loitering statutes specifically targeting sex offenders."^^ No restriction can ensure complete safety, though. When tragedies occur, angry parents may not evaluate the effectiveness ofcurrent restrictions, but may instead seek vengeance through even greater restrictions'^ in what some are referring to as a "war on sex offenders. '"^^ To avoid infringing on sex offenders' rights and possibly create more effective policies, lawmakers must analyze the effectiveness of current and proposed restrictions without succumbing to the public's emotional demands. 7. Sex Offender Registration.—Emotional outcries in response to sex crimes have made sex offender registration statutes a high legislative priority."*^ Each state (as well as the District of Columbia) enforces its own sex offender registration statute."^^ Many federal and state sex offender registration statutes 41. See, e.g.. Sex Offender Registry Fact Sheet, Mo. STATE HIGHWAY PATROL, http://www.mshp.dps.mo.gov/MSHPWeb/PatrolDivisions/CRID/SOR/ factsheet.html (last visited June 6, 201 1) (noting that Missouri began its sex offender registry in January 1995); Sex Offender Web Site, STATE OF N.D. OFFICE OF Att'Y Gen., http://www. sexoffender.nd.gov/FAQ/faq.shtml (last visited June 4, 20 1 1 ) (noting that North Dakota passed its first sex offender registration statute in 1991). 42. Marcus Nieto & David Jung, Cal. Research Bureau, The Impact of Residency Restrictions on Sex Offendersand CorrectionalManagementPractices: ALiterature Review 15 (2006), available at http://www.library.ca.gov/crb/06/08/06-008.pdf 43. See discussion infra Part LB.3. 44. See Rose Corrigan, Making Meaning ofMegan 's Law, 3 1 Law& SOC. INQUIRY 267, 267 (2006) (discussing the events leading up to the passage of Megan's Law: "Kanka's parents were outraged that they did not know a convicted sex offender lived in the neighborhood and helped organize a statewide movement to reform laws regarding sex offenders."). 45. See generally Corey Raybum Yung, The Emerging Criminal War on Sex Offenders, 45 Harv. C.R.-C.L. L. Rev. 435 (2010). 46. The bill that became the Adam Walsh Child Protection and Safety Act of2006 was self- described as "[a]n Act ... to honor the memory of Adam Walsh and other child crime victims." Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, 109th Cong. (2006); see also LaFond, supra note 22, at xiii ("Sex offenders are America's most hated public enemy .... The public has demanded action and politicians have responded, passing new laws . . . ."). 47. Ala. CODE §§13A-1 1-200 to -204 (2006 «&Supp. 2010); Alaska Stat. §§12.63.010 to -.100(2010); Ariz. Rev. Stat. §§13-3821 to -3827 (2011); Ark. Code Ann. §§ 12-12-901 to-920 (2010); Cal. Penal Code §§ 290.001 to -.95 (2010); Colo. Rev. Stat. §§ 16-22-101 to -115 (20 1 0); Conn. Gen. Stat. Ann. § § 54-250 to -26 1 (West, Westlaw through 20 1 1 legislation); Del. CodeAnn. tit. 1 1 , § § 4 1 20 to -22 (West, Westlaw through 2011 legislation); D.C. Code § § 22-400 1 924 INDIANA LAW REVIEW [Vol. 44:919 bear the name of a child abused in that jurisdiction."^^ Under the Adam Walsh Child Protection and Safety Act of 2006/^ sex offenders must register their names, Social Security numbers, addresses, places of employment or study, and license plate numbers.^^ The federal government then requires each state to notify to -40 1 7 (20 1 1 ); FLA. Stat. Ann. § 943 .043 5 (West, Westlaw through 20 1 1 legislation); Ga. Code Ann. §§ 42-1-12 to -14 (2010); Haw. Rev. Stat. §§ 846E-1 to -12 (West, Westlaw through 201 1 legislation); Idaho Code Ann. §§ 18-8301 to -8328 (2010); 730 III. Comp. Stat. Ann. 150/1 to -/12 (West, Westlaw through 201 1 Reg. Sess.); Ind. Code §§ 1 1-8-8-1 to -22 (201 1); Iowa Code Ann. §§ 692A.101 to -.130 (West, Westlaw through May 19 of201 1 Reg. Sess.); Kan. Stat. Ann. §§22-4901 to -4913 (2007&Supp.2009);KY.REV. Stat. Ann. §§ 17.500 to-.580 (West, Westlaw through 2010 legislation); La. Rev. Stat. Ann. §§ 15:540 to -:552 (West, Westlaw through 2010 legislation); Me. Rev. Stat. Ann. tit. 34-A, §§ 1 1201-56 (West, Westlaw through 2009 1st Reg. Sess.); Md. Code Ann., Crim.Proc.§§ 11 -701 to -7 17 (West, Westlaw through 20 11 Reg. Sess.); Mass. Gen. Laws Ann. ch. 6, §§ 178C-Q (West, Westlaw through 201 1 1st Annual Sess.); MiCH. CoMP. Laws Ann. § § 28.72 1 to -.732 (West, Westlaw through 20 1 1 Reg. Sess.); Minn. Stat. Ann. § 243.166 (West, Westlaw through 201 1 Reg. Sess.); MiSS. Code Ann. §§ 45-33-21 to -59 (2010); Mo. Rev. Stat. §§ 589.400 to -.425 (20 1 0); Mont. Code Ann. §§ 46-23-50 1 to -520 (2009); Neb. Rev. Stat. §§29-4001 to -4014(2008 &Supp.2010);NEV.REV. Stat. Ann. §§179D.010 to -.550 (West, Westlaw through 20 1 Spec. Sess.); N.H. REV. Stat. Ann. § § 65 1 -B: 1 to : 1 2 (2007 & Supp. 2010); N.J. Stat. Ann. §§ 2C:7-1 to -18 (2011); N.M. Stat. Ann. §§ 29-1 lA-1 to -10 (West, Westlaw through 201 1 legislation); N.Y. Correct. Law §§ 168 to 168-v(McKinney2003 & Supp. 201 1); N.C. Gen. Stat. §§ 14-208.5 to -208.45 (201 1); N.D. Cent. Code § 12.1-32-15 (1997 & Supp. 2009); OfflO Rev. Code Ann. § 2950.01-.99 (West, Westlaw through 2011 legislation); Okla. Stat. Ann. tit. 57, §§ 581 to -87 (West, Westlaw through 201 1 legislation); Or. Rev. Stat. Ann. §§ 181.585 to -.606 (West, Westlaw through 2011 Reg. Sess.);42PA.CoNS. Stat. Ann. §§ 9791-99.9 (West, Westlaw through 201 1 Reg. Sess.); R.I. Gen. Laws Ann. §§ 1 1-37.1-1 to -20 (West, Westlaw through 201 1 1st Reg. Sess.); S.C. Code Ann. §§ 23-3-400 to -550 (2007 & Supp. 2010); S.D. Codified laws §§ 22-24B-1 to -34 (2010); Tenn. Code Ann. §§ 40-39-201 to -212 (West, Westlaw through 201 1 1st Reg. Sess.); Tex. Crim. Proc. Code Ann. §§ 62.001 to -.408 (West, Westlaw through 201 1 Reg. Sess.); UtahCodeAnn. § 77-27-21 .5 (West, Westlaw through 20101egislation);VT.STAT.ANN.tit. 13, §§5401 to -14 (2010); Va. Code Ann. §§9.1-900 to-922 (201 0); Wash. Rev. Code Ann. §§ 9A.44. 1 30 to -. 145 (West, Westlaw through 20 1 1 legislation); W. Va. Code Ann. §§15-12-1 to -10 (West, Westlaw through 201 1 Reg. Sess.); Wis. Stat. Ann. §§301 .45 to -.48 (West, Westlaw through 20 1 1 legislation); Wyo. Stat. Ann. §§ 7- 1 9-30 1 to -308 (West, Westlaw through 2010 legislation). 48. See, e.g., Adam Walsh Child Protection and Safety Act of2006, 42 U.S.C. § 16901 (2006 & Supp. 2009) (listing seventeen children whose attacks demonstrated the need for federal legislation establishing sex offender registration requirements); Megan's Law, N.J. Stat. Ann. § 2C:7-lto-18. 49. 42U.S.C. §§ 16901-62. 50. Id. § 16914. States may also require additional information. For example, in Delaware, [t]he registration forms shall include, but are not limited to, the following information: the sex offender's legal name, any previously used names, aliases or nicknames. Social Security number, email address or addresses, Internet identifiers, and the age, gender, race and physical description of the sex offender. The registration form shall also 201 1] NOT IN MY LIBRARY 925 the public of sex offenders in its jurisdiction through an online registry.^' 2. Residency Restrictions.—States and cities have adopted residency restrictions prohibiting sex offenders from living within a prescribed number of feet of schools, parks, day care centers, and other places where children frequently gather. ^^ The most restrictive locales, such as the City of Sunny Isles Beach, Florida, prohibit sex offenders from living within 2500 feet of a school, school bus stop, day care center, park, playground, or other locations where children congregate.^^ Creation of zones with a radius of 2500 feet around each of these common locations greatly limits or renders nonexistent the remaining areas where a sex offender can live. In Doe V. Miller,^"^ the Eighth Circuit upheld Iowa's sex offender residency restriction, which forbids sex offenders from living within 2000 feet ofa school.^^ The court noted that state legislatures may determine the best way to protect their constituents' health and welfare when insufficient statistical data exist to determine whether a restriction will achieve its stated goal.^^ The court assumed that the statement "[s]ex offenders are a serious threat in this Nation" was include all other known identifying factors, the offense history and the sex offender's current residences or anticipated place of future residences, places of study and/or places of employment, and the registration plate numbers and descriptions of any vehicles owned or operated by the offender, including any watercraft or aircraft with the locations where such vehicles are docked, parked, or otherwise stored, copies of that offender's passport, any licenses to engage in an occupation or to carry out a trade or business, and the offender's home telephone number and any cellular telephone numbers. The fornis shall also include a statement ofany relevant conditions ofrelease, discharge, parole or probation applicable to the sex offender. Additionally, the form shall identify the age ofthe victim or victims ofthe offense or offenses and describe the victim's relationship to the offender. The form shall also indicate on its face that false statements therein are punishable by law. A photograph of the offender taken at the time of registration shall be appended to the registration form. Del. Code Ann. tit. 11, § 4120(d)(2). Utah requires sex offenders to register their "Internet identifiers and the addresses the offender uses for routing or self-identification in Internet communications or postings." Utah Code Ann. § 77-27-2 l,5(14)(i). Despite the potential for a chilling effect on normally anonymous speech, this requirement has been upheld in the face of a First Amendment challenge. Doe v. Shurtleff, 628 F.3d 1217, 1227 (10th Cir. 2010). 51. 42U.S.C. § 16918. 52. See, e.g., ALA. CoDE § 15-20-26 (prohibiting sex offenders from living within 2000 feet ofa school or day care center); Cal. PenalCode § 3003.5(b) (prohibiting registered sex offenders from living within 2000 feet of a school or park); Newark, N.J., Rev. Gen. Ordinances tit. XX, ch. 26A, § 1 (2008) (prohibiting convicted sex offenders from living within 200 feet of a "school, playground, recreation center, or park"); Stephenville, Tex., Code § 130.83(D) (2007) (making it unlawful for sex offenders to reside within 1000 feet of places where children gather). 53. Sunny Isles Beach, Fla., Code § 222-4(A) (2005). 54. 405 F.3d 700 (8th Cir. 2005). 55. Iowa Code Ann. § 692A. 1 14 (West, Westlaw through May 19 of 201 1 Reg. Sess.). 56. M7/er,405F.3dat714. 926 INDIANA LAW REVIEW [Vol. 44:9 1 9 rationaF^ without drawing any distinction between types of sex offenders or their likelihood of recidivism.^^ The Eighth Circuit rejected fear of sex offenders or a desire to harm them as rationales for the residency restriction.^^ Assuming sex offenders have a high rate of recidivism, the court rationalized the residency restriction on this basis.^^ Ultimately, the court grounded its holding in "common sense"—specifically, on the notion that "limiting the frequency of contact between sex offenders and areas where children are located is likely to reduce the risk of an offense."^^ A Minnesota Department of Corrections study refutes the Miller court's "common sense" reasoning. The study examined the offense characteristics of 224 Minnesota recidivists' offenses and concluded that a residency restriction would not have prevented any of them.^^ Most of the cases involved a child victim the offender already knew.^^ Ofthe cases where the offender made initial contact with a stranger within 2500 feet of the offender's residence, sixteen involved a minor victim, but none occurred near the locations designated by residency restriction statutes.^"^ In three instances, the offense occurred in a prohibited location, but two instances involved an offender who lived more than ten miles away, and the other attack involved an adult victim.^^ These findings demonstrate that residency restrictions are ineffective and attacks in public places are exceedingly rare. An analogous study by the Colorado Department of Public Safety Sex Offender Management Board reported similar findings. The report noted that residency restrictions may actually increase recidivism rates because they greatly limit the areas where offenders can live, thereby removing them from support 57. Id. at 715 (quoting Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003)). 58. If all sex offenders are equally dangerous, statutes such as Iowa Code Ann. § 692A. 1 02, where the Iowa legislature classifies its sex offenders into three tiers based on their convicted offenses, would be unnecessary. 59. M7/er,405F.3dat716. 60. Id. Contra Dwight H. Merriam & Patricia E. Salkin, ResidencyRestrictionfor Convicted Sex Offenders: A PopularApproach on Questionable Footing, 2009 A.L.I. LANDUSE iNST. 95, 98 (identifying high recidivism ofsex offenders as a popular myth tojustify residency restrictions after examining the U.S. Department of Justice's findings that only 5.3% of sex offenders reoffended three years after release). 61. Miller, 405 F.3d at 716. A little over a year after this decision, the Iowa County Attorneys Association issued a statement expressing its disbelief in the effectiveness of this law. lowA Cnty. Att'ys Ass'n, Statement on Sex Offender Residency Restrictions in Iowa (Dec. 11, 2006), available at http://www.iowa-icaa.com/ICAA%20STATEMENTS/Sex%20 Offender%20Residency%20Statement%20Dec%)20 1 1 %2006.pdf 62. Minn. Dep't of Corr., Residential Proximity & Sex Offense Recidivism in Minnesota 1 -2 (Apr. 2007), available at http://www.doc.state.mn.us/publications/documents/04- 07SexOffenderReport-Proximity.pdf 63. See id. at 2. 64. Id 65. Mat 23. 2011] NOT IN MY LIBRARY 927 systems.^^ This study found the sites of sex crimes to be scattered throughout the community; they were not clumped near schools, day care centers, or other places children usually gather.^^ Although this study did not fmd the location of a sex offender's residence to be related to recidivism, it did fmd that sex offenders living in shared living arrangements with other sex offenders to whom they were accountable were less likely to reoffend than offenders living with friends or family. ^^ This study shows that instead offocusing on where a sex offender lives, attention should be given to how and with whom offenders live. 3. Anti-Loitering Ordinances.—Anti-loitering ordinances are less restrictive than bans of sex offenders from public places, but the bans may have evolved from these anti-loitering ordinances.^^ In fact, Henderson County, North Carolina's ordinance, which forbids "a convicted child sex offender to knowingly loiter in any child safety zone," is titled "Prohibition of convicted child sex offenders in child safety zone."^^ This ordinance does not prohibit sex offenders from entering the "child safety zone," which includes public libraries, but it expressly states that a sex offender may not "loiter," which is defined as "[sjtanding, sitting idly, whether or not the person is in a vehicle or remaining in or around a child safety zone."^^ The risk of over-enforcement of these ordinances in libraries is high. A sex offender casually perusing a magazine at the library could be classified as "sitting idly." Stephenville, Texas's anti-loitering ordinance is narrower than Henderson County's; it only prohibits a sex offender to "knowingly loiter on a public way within 300 feet of a [c]hild [s]afety [z]one."^^ Stephenville 's anti-loitering provision can be narrower because it is supplemented by a provision prohibiting 66. Colo. Dep't of Pub. Safety Sex Offender Mgmt. Bd., Report on Safety Issues Raised by Living Arrangements for and Location of Sex Offenders in the Community 9 (2004), available at http://dcj.state.co.us/ors/pdf/docs/fullSLAfinal.pdf 67. Id. at 30. 68. Id. at 25. 69. Not only is banning someone's presence one step removed from prohibiting loitering, but some ofthe sex offender bans involve "child safety zones" similar to those defined in anti-loitering statutes. CowporeNEWBEDFORD, Mass., Code § 17-26(1) (2008), with HENDERSON Cnty.,N.C., Code §130A-50 (2008). 70. Henderson Cnty., N.C, Code § 1 30A-50(B). 71. Id §130A-50(A). 72. Stephenville, Tex., Code § 130.83(C) (2007) (emphasis added). Stephenville' s "child safety zone" includes [pjublic parks, private and public schools, public library, amusement arcades, video arcades, indoor and outdoor amusement centers, amusement parks, public or commercial and semi-private swimming pools, child care facility, child care institution, public or private youth soccer or baseball field, crisis center or shelter, skate park or rink, public or private youth center, movie theater, bowling alley, scouting facilities and Offices for Child Protective Services. Id. § 130.82 (emphasis added). 928 INDIANA LAW REVIEW [Vol. 44:9 1 9 sex offenders from knowingly entering a "child safety zone."^^ Similarly, Iowa forbids a sex offender whose victim was a minor from loitering within three hundred feet of a school, child care facility, public library, or "any place intended primarily for the use of minors. "^"^ Methuen, Massachusetts also couples an anti-loitering provision with a prohibition of registered sex offenders' entrance to designated areas—such as schools, libraries, recreational facilities, and housing for the elderly and mentally retarded—^but requires the Methuen Police Department to notify a registered sex offender of his or her loitering before the individual can be subject to penalties for loitering. ^^ This loitering provision also encompasses a broader area than the Stephenville or Iowa loitering restrictions by prohibiting registered sex offenders from loitering within five hundred feet ofthe protected locations. ^^ However, the Methuen ordinance instructs law enforcement to measure the minimum distance "by following a straight line from the location where the [rjegistered [s]ex [o]ffender is or was present to the outer property line of the [s]chool, a [d]ay [cjare [c] enter, a [p]ark, any [rjecreational [f|acility, [e]lderly [h]ousing [f]acility or [f]acility for the [m]entally [rjetarded."^^ Despite the efforts of the aforementioned restrictions, sex offenses continue to plague society. However, instead of examining the efficacy of existing sex offender regulations and addressing their deficiencies,^^ government officials usually respond by adding more restrictions.^^ Because the label "sex offender" encompasses a wide variety of individuals,^^ it is difficult to create legislation strong enough to deter the worst offenders without excessively restricting those who are sex offenders because of a technicality. Unfortunately, many jurisdictions' citizens do not worry about excessive restrictions.^^ 73. Id. § 130.83(B). 74. IowaCodeAnn. § 692A. 113(1 )(h) (West, Westlaw through May 1 9 of20 1 1 Reg. Sess.). 75. See METHUEN, MASS., MUN. CODE ch. 27, §§ 1, 3(A) (2008). 76. Id. § 3(A)(4). 77. Id 78. An efficacy study ofNew Jersey's Megan's Law was conducted in 2008; it found that "Megan's Law showed no demonstrable effect in reducing sexual re-offenses. . . . Megan's Law has no effect on reducing the number ofvictims involved in sexual offenses." Kristen Zgoba et AL., N.J. Dep't OF CoRR., Megan's Law: Assessing the Practical and Monetary Efficacy 2 (2008), available at http://www.nj.gov/defender/news/MegansLawAssessingEfficacy.pdf Despite these findings, Megan's Law has not been amended since 2008. See N.J. STAT. Ann. § 2C:7-lto-18(2011). 79. See supra Parts \.B.2-2>;see also A.B. 1 844 (Cal. 20 1 0) (The Chelsea King Child Predator Prevention Act of 2010, which was signed into law on September 9, 2010, increases the penalties for criminal defendants found guilty of various sex crimes against children.). 80. See supra notes 32-40 and accompanying text. 8 1 . The Rowan County Board of Commissioners provided public notice when it proposed an ordinance banning sex offenders from public places. No public comments were received, and only one individual inquired about public hearings regarding the proposed ordinance. Minutes of the Meeting ofthe Rowan Cnty. Bd. ofComm'rs 3-4 (Apr. 7, 2008) [hereinafter Rowan Cnty. Apr. 2011] NOT IN MY LIBRARY 929 11. Bans of Sex Offenders from Public Libraries Few jurisdictions currently ban sex offenders from public libraries, but additional communities may be considering this type of restriction.^^ When sex offender restrictions are upheld, additional jurisdictions add similar legislation.^^ However, following Doe v. City of Albuquerque,^^ other jurisdictions may reconsider plans to adopt a similar ban.^^ Bans of sex offenders from public libraries exist at the state,^^ county,^^ and municipal^^ levels of government in nearly all regions of the United States.^^ Some of the currently enforced bans include libraries among places where sex offenders cannot be present,^^ while other legislation creates "child safety zones"—including libraries—which sex offenders may not enter.^' A. Currently Enforced Bans ofSex Offendersfrom Public Libraries 1. State Statute.—Currently, the only state-level ban of sex offenders from public libraries is in Iowa, and it only applies to sex offenders convicted of a sex offense against a minor.^^ Iowa's ban of sex offenders from libraries and other 7, 2008 Minutes], available at http://www.co.rowan.nc.us/GOVERNMENT/Commission/ MinutesandAgendas/tabid/447/Default.aspx (click "Minutes", then click "2000s", then click "2008", and open "cm 080407.pdf."). 82. S'eeH.B. 1100,2011 Gen. Assemb., 1st Reg. Sess.(Ind. 2011) ("A registered sex offender who knowingly or intentionally enters a public library . . . commits sex offender library trespass, a Class D felony."). 83. See Megan McCurdy, Case Note, Doe v. Miller, 38 Urb. Law. 360, 361 (2006) (noting that Polk County and Des Moines, Iowa amended their residency restrictions to include additional public places sex offenders could not reside near following Doe v. Miller)', Rowan Cnty. Apr. 7, 2008 Minutes, supra note 8 1 , at 3 (noting that the Rowan County Planning Board used Woodfm's ordinance banning sex offenders from parks as a model after the North Carolina Court ofAppeals upheld it). 84. No. 08-CV-01041-MCA-LFG (D.N.M. Mar. 31, 2010). 85. See Neil Vigdor, Sex Offender Ban Going Back to RTM, GREENWICH TIME, May 10, 2010, available at http://www.greenwichtime.com/local/article/Originally-in-the-Sunday-paper- Sex-offender-ban-48 1 1 80.php (noting that the original proposed ban was changed so that libraries would not be included in child safety zones). 86. IowaCodeAnn. §692A.l 13(1 )(f) (West, Wesilaw through May 19 of201 1 Reg. Sess.). 87. Rowan Cnty., N.C, Code § 1 5-3(b) (2008). 88. New Bedford, Mass., Code § 17-26(1) (2008); Stephenville, Tex., Code §§ 130.82- .83 (2007). 89. Iowa Code Ann. § 692A.113(l)(f); Rowan Cnty., N.C, Code § 15-3(b); New Bedford, Mass., Code § 17-26(1); Stephenville, Tex., Code §§ 130.82-.83. 90. See, e.g., lowA CODE Ann. § 692A.113. 91. New Bedford, Mass., Code § 17-26(1); Stephenville, Tex., Code §§ 130.82-.83. 92. IowaCodeAnn. §692A.113(1). 930 INDIANA LAW REVIEW [Vol. 44:9 1 9 public places evolved from Polk County^^ and Des Moines^"^ ordinances. These ordinances added public pools and libraries to the list of locations near which sex offenders could not live following the Eighth Circuit's decision in Doe v. Miller,^^ which allowed the government to prohibit sex offenders from living near schools and child care facilities.^^ In 2009, these local ordinances were repealed when the Iowa General Assembly passed statutes prohibiting sex offenders' residences within 2000 feet of a school or child care facility^'' and their presence on library or pool property.^^ Many similarities exist among public library policies adopted to comply with the Iowa statute.^^ To enter library property, sex offenders usually must appeal to the library's board of trustees. ^^^ Library materials may be borrowed through a designee who uses the sex offender's library card.'^' Sex offenders may receive books and other media through home delivery from select libraries, ^°^ but many libraries will not provide this service to sex offenders. '^^ Furthermore, because sex offenders cannot be present on library property, they cannot access information available only inside the library, such as non-circulating reference materials and local history archives. ^^"^ An affected offender might, however, request that library staff conduct local history or genealogy research on his or her behalf for a modest fee.^^^ Currently, Iowa remains a test case that other states can monitor to ascertain ifbans will abate sex offenses and survive constitutional challenges. 2. County Ordinance.—Because most states do not ban sex offenders from public libraries, counties may enact similar ordinances. Local ordinances may be a more appropriate source of sex offender restrictions because they allow each 93. Polk Cnty., Iowa, Ordinance 238 (2005) (repealed 2009). 94. Des Moines, Iowa, Code §§ 70-307 to -3 11 (2005) (repealed 2009). 95. 405 F.3d 700 (8th Cir. 2005). 96. McCurdy, 5w/7ranote 83, at360. - 97. Iowa Code Ann. § 692A. 11 4. 98. M§692A.113. 99. See Sex Offender Against Minors Policy, Knoxville Pub. LIBRARY, http://www2. youseemore.com/knoxville/about.asp?loc=20 (last modified Sept. 1 6, 2009) [hereinafter Knoxville Policy]; Sex Offender Policyfrom Iowa City Public Library, State LIBRARY OF loWA (July 23, 2009), http://www.statelibraryofiowa.org/ld/k-p/Policies/ic/ [hereinafter Iowa City Policy]; Waterloo Pub. Library, Registered Sex Offenders Policy (July 13, 2009), available at http://www.waterloo.lib.ia.us/library-information/policies/offender [hereinafter Waterloo Policy] . 1 00. Iowa City Policy, supra note 99; Knoxville Policy, supra note 99; Waterloo Policy, supra note 99. 101. Iowa City Policy, supra note 99; Knoxville Policy, supra note 99; Waterloo Policy, supra note 99. 102. Iowa City Policy, 5w/7ra note 99. 103. See, e.g., Knoxville Policy, supra note 99. 104. See Genealogy Research Policies, AKRON PUB. LIBRARY, http://www.akron.lib. ia.us/library-information/policies/access/Genealogy (last modified Mar. 13, 2010). 105. See id. 2011] NOT IN MY LIBRARY 93 1 community to determine the appropriate balance between public safety and individual rights based on its own standards. An example of a county ordinance is Rowan County, North Carolina's, which reads "Registered sex offenders prohibited from entering Rowan County parks, recreation areas, fairgrounds and public libraries."^'^ The relevant portion ofRowan County's ordinance reads, "No registered sex offender shall enter into or upon any Rowan County parks, recreation area, fairgrounds, or public libraries operated by the County of Rowan."^^^ This ordinance did not initially include libraries; rather, it sought only to protect people in Rowan County parks and recreation areas. ^^^ The planning board confidently added other public locations to the proposed ordinance^^^ after October 2007, when the North Carolina Court of Appeals upheld a similar ordinance banning sex offenders from public parks in Standley v. Town of Woodfin}^^ The board of commissioners stated at that time that the purpose of the resolution was "to protect children."^ ^ ^ Local ordinances like these are passed by legislators who likely know the children whose protection is at stake. In these instances, there is great danger that emotion can undermine considerations of sex offenders' rights. 3. Municipal Ordinance.—Most bans of sex offenders from public libraries are issued by cities. '^^ Sometimes, these ordinances respond to improper activities that occur at the local library.^ ^^ Municipal ordinances attempting to protect children from harm favor the "child safety zone" approach. ^^"^ Stephenville, Texas's "Sex Offender Prohibition" is a municipal ordinance that prohibits a sex offender from "knowingly enter[ing] a [c]hild [s]afety [z]one."^*^ Public libraries are included in the term "child safety zone."^^^ This 106. Rowan Cnty.,N.C., Code § 15-3(2008). 107. Id. § 15-3(b). 108. See Rowan Cnty. Sept. 4, 2007 Minutes, supra note 15, at 16. 109. See Rowan Cnty. Apr. 7, 2008 Minutes, supra note 81, at 3-4. 1 10. 650 S.E.2d 618, 623 (N.C. Ct. App. 2007), affd, 661 S.E.2d 728 (N.C. 2008). 111. Minutes of the Meeting of the Rowan Cnty. Bd. of Comm'rs 19 (Apr. 21, 2008) [hereinafter Rowan Cnty. Apr. 21, 2008 Minutes], available at http://www.co.rowan.nc.us/ GOVERNMENT/Commission/MinutesandAgendas/tabid/447/Default.aspx (click "Minutes", then click "2000s", then click "2008", and open "cm 080421.pdf"). 1 12. Compare Part II.A.1-2, with Part II.A.3-B. 113. See, e.g.. Jack Encamacao, Quincy Moves to Ban Sex Offendersfrom Libraries, Parks, Patriot Ledger, Dec. 29, 2009, available at http://\vww.patriotledger.com/news/ cops_and_courts/x 1 444026856/Quincy-moves-to-ban-sex-oflfenders-from-libraries-parks (reporting that a Quincy, Massachusetts city councilor's reason for considering the ordinance was that a teenager had witnessed a man masturbating while viewing pornography on a library computer). 1 14. See New Bedford, Mass., Code § 17-26(l)(a)(i) (2008); Stephenville, Tex., Code § 130.83 (2007); Encamacao, supra note 113 (noting that the proposed Quincy, Massachusetts ordinance would establish "safety zones"). 115. Stephenville, Tex., Code § 130.83(B). 116. Id § 130.82. 932 INDIANA LAW REVIEW [Vol. 44:919 restriction applies only to offenders whose victim was under seventeen years old^^^ and does not apply to offenders who were minors at the time ofthe offense andwQYQ not tried as adults. ^'^ The "Purpose and Intent" of the ordinance reads as follows: It is the intent of this subchapter to serve the city's compelling interest to promote, protect and improve the health, safety and welfare of the citizens of the city by creating areas around locations where children regularly congregate in concentrated numbers wherein certain registered sex offenders and sexual predators are prohibited from loitering or prohibited from establishing temporary or permanent residency. ^^^ This wording shows that the city council anticipated a constitutional challenge. Surprisingly, prohibiting sex offenders from child safety zones is not linked here with serving a compelling interest. ^^^ Another example is New Bedford, Massachusetts 's ordinance, "Child Sex Offender in Child Safety Zone."^^^ New Bedford passed this ordinance banning sex offenders from public places—including libraries—after a convicted sex offender raped a six-year-old boy in the New Bedford Public Library. *^^ This ordinance includes the library in the "child safety zone"*^^ and prohibits registered sex offenders from being present in any "child safety zone."^^"^ The New Bedford ban recognizes that not all sex offenders pose the same threat to children and applies only to level two and three offenders. ^^^ It also 117. Id 118. M§ 130.85(D). 119. Id § 130.82 (emphasis added). 120. See id. 121. NewBedford, Mass., Code § 17-26(2008). Ofthe ban examples provided in this Note, the New Bedford ordinance is the most detailed. 1 22 . See Marie Szaniszlo, AllegedNew BedfordLibrary Rape Prompts Action, Bos. HERALD, Feb. 16,2008, at 6. 123. Childsafety zone means: (a) A park, playground, recreation center, library, school, day care center, private youth center, video arcade, bathing beach, swimming pool or wading pool, gymnasium, sports field, or sports facility, including the parking area and land adjacent to any of the aforementioned facilities, and school or camp bus stops, which is: 1 ) Under the jurisdiction of any department, agency, or authority ofthe City ofNew Bedford, including but not limited to the School Department ofthe City ofNew Bedford, or 2) Leased by the City ofNew Bedford to another person for the purpose of operating a park, playground, recreation center, bathing beach, swimming pool or wading pool, gymnasium, sports field, or sports facility. NewBedford, Mass., Code § 17-26(l)(a)(i) (second emphasis added). 124. M§ 17-26(l)(b). 125. Id. § 17-26(l)(a)(ii)(a). Level two offenders are those whose "risk of reoffense is moderate and the degree of dangerousness posed to the public is such that a public safety interest is served by public availability of registration information." MASS. Gen. Laws Ann. ch. 6, § 2011] NOT IN MY LIBRARY 933 provides for several exceptions when sex offenders may enter the "child safety zone."^^^ The New Bedford ordinance allows sex offenders to conduct business at government facilities, but it specifically excludes libraries from this exception. '^^ Only sex offenders whose polling place is the library may ever visit the library, and even then, offenders may enter the library only to vote.^^^ This ordinance's limited application and specific exceptions reflect the impracticability of enforcing a complete ban of sex offenders from public places. The exceptions also create a more equitable restriction despite the emotional circumstances that inspired the ban. Methuen, Massachusetts 's ordinance, "Registered Sex Offender Restrictions," was also inspired in part by the attack at the New Bedford Public Library. ^^^ This ordinance does not create "child safety zones," although Section 3 is entitled "Safety Zones," but it specifies that [a] [r]egistered [s]ex [ojffender is prohibited from entering upon the premises of a [s]chool or [d]ay [c]are [cjenter unless previously authorized specifically in writing by the [sjchool administration or [d]ay [c]are [c]enter owner ... an [e]lderly [h]ousing [f|acility or [fjacility for the [m]entally [r]etarded unless previously authorized in writing by the on-site manager .... In the case ofthose dwellings under the ownership, administration, or operation to the Methuen Housing Authority a [r]egistered [s]ex [ojffender is prohibited from entering upon the premises thereofunless previously authorized in writing by the executive director of the Methuen Housing Authority to do so, [or] a [p]ark or any [r]ecreational [fjacility.^^^ Public libraries are included under the definition of "school."^^^ Like New 178K(2)(b) (West, Westlaw through 20 11 1st Annual Sess.). A level three offender is someone whose "risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination." Id. § 1 78K(2)(c). The city ofQuincy, Massachusetts also bans sex offenders from libraries but limits its ban only to these most dangerous level III offenders. See King, supra note 4. By contrast, level one offenders' "risk of reoffense is low and the degree ofdangerousness posed to the public is not such that a public safety interest is served by public availability." Mass. Gen. Laws Ann. ch. 6, § 178K(2)(a). For more information on level one offenders in Massachusetts, see Jenai J. Cormier, Note, Noble in Theory, Vain in Practice: A Critique ofLevel One Sex Offenders in Massachusetts, 44 NEW Eng. L. Rev. 103(2009). 126. 5ee New Bedford, Mass., Code § l7-26(l)(c). 127. Id § 17-26(l)(c)(vi)(a). 128. Id § 17-26(l)(c)(iv). 129. City councilor Willette argued in support of the ordinance, "You've had Level 3 sex offenders travel into public libraries and attack children. . . . It's well documented throughout the last year . . . ." J.J. Huggins, Sex Offender 's Family Opposes Law on 'Predator Free ' Zones, Eagle-Trib., July 13, 2008 (on file with author). 130. Methuen, Mass., Mun. Code ch. 27, §§ 3(A)(l)-(3) (2008). 131. Id § I. 934 INDIANA LAW REVIEW [Vol. 44:9 1 9 Bedford's ordinance, the Methuen ordinance applies only to level two, level three, and SVP offenders, '^^ and it provides an exception for offenders to vote if one of the prohibited locations is his or her polling place. ^^^ This ordinance is unique in that it also provides for posting of level three offenders at the Nevins Library and the other locations where offenders are not allowed. ^^"^ Thus, the ordinance shows that there are so few offenders in their community that they can easily post their pictures in a public area of each location. B. Unconstitutional Ban ofSex Offendersfrom Public Libraries Before delving into why the initial Albuquerque ban was declared unconstitutional,^^^ it is important to understand some of its unique aspects. The Albuquerque ban was established by an executive instruction signed by Albuquerque's former mayor, Martin Chavez. ^^^ Proper municipal executive instruction subject matter varies by jurisdiction and depends on the mayoral duties assigned by the city's charter. ^^^ Generally, the legislature, as the most politically accountable branch, should make important policy decisions. ^^^ Municipal executive instructions are often used to make appointments ^^^ or regulate mundane matters, such as how city employees answer the telephone. ^"^^ Despite the tradition of using executive instructions to facilitate the daily operations of city government, in 2008, former Albuquerque mayor Martin J. Chavez issued Executive Instruction No. 25, which prohibited registered sex offenders from entering public libraries in the City of Albuquerque. ^"^^ His goal 132. Id. 133. Id. § 3(B)(1). 134. Id. § 4(A). This posting is similar to an attempted de facto ban of sex offenders from public libraries in Boston in 2005. In that instance, then-Mayor Thomas Menino provided public libraries with mug shots of the most serious sex offenders in Boston in order to help librarians identify them and ask them to leave if they were engaging in suspicious behavior. Allegedly registered sex offenders would be allowed to stay at the library if they were in compliance with library use policies. Kevin Rothstein, Stacked Against Them: Perv Mugshots Will Hang in Libraries, Bos. HERALD, Aug. 13, 2005, at 2. However, if librarians should be looking out for suspicious behavior from any patron, why are pictures of registered sex offenders necessary? 135. See discussion infra Part IV.B.3. 136. Original Albuquerque, N.M., Exec. Instruction No. 25, supra note 2. 137. For example, Albuquerque, New Mexico ' s charter delegates executive and administrative power to the mayor to organize and delegate responsibility to city employees. See City of Albuquerque, Charter art. 5, §§ 3-4 (2007). 138. See Indus. Union Dep't, AFL-CIO v. Am. Petrol. Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., concurring). 139. See, e.g., ALBUQUERQUE, N.M., ExEC. Instruction No. 3: Appointment of Chief Administrative Officer (Dec. 5, 2005) (on file with author). 140. Albuquerque, N.M., Exec. Instruction No. 11: Telephone Courtesy (Aug. 8, 2000) (on file with author). 141. Original Albuquerque, N.M., Exec. Instruction No. 25, supra note 2. 201 1] NOT IN MY LIBRARY 935 was to prevent predators from accessing children and public computers where they could talk to children. ^"^^ The executive instruction required libraries to initially notify library card-carrying sex offenders that they could not enter any public library in Albuquerque.'"*^ After this initial notification, law enforcement agencies were responsible for enforcing Executive Instruction No. 25.''*'* The Albuquerque/Bemalillo County Library System also provided continual notice to sex offenders in its building use rules, which read in part, "City of Albuquerque policy prohibits registered sex offenders from using public library facilities."'"*^ Two days after the ruling in Doe v. City ofAlbuquerque, which held the ban unconstitutional, '"^^ this line was removed from the building use rules.*"*'' Albuquerque's ban, as an executive instruction that applied only to libraries,*"*^ was unique. However, the City of Albuquerque did not abandon its efforts to protect children following Doe v. City of Albuquerque. In addition to appealing the decision, Albuquerque's current mayor, Richard Berry, signed a new executive instruction on May 6, 20 lO.*'*^ This instruction allows registered sex offenders to visit the main library in downtown Albuquerque only on Thursdays and Saturdays between 1 0:00 A.M. and 6:00 P.M., and they must sign in with security officers, provide photo identification, and refi"ain from visiting the children's section. *^^ C Comparison ofthe Bans Although each ban has a distinct scope, several similarities exist among them. Even though the Iowa, Stephenville, and New Bedford bans are limited to sex offenders with minor victims, all of the bans target a wide range of offenders,*^* 1 42. Scott Sandlin, Sex Offender Library Ban Overturned, ALBUQUERQUE J., Apr. 2, 20 1 0, at CI. 143. Original Albuquerque, N.M., Exec. Instruction No. 25, supra note 2. However, when this law was enforced, the police compared the list of library card holders with sex offender registries and sent criminal trespass warnings to those on both lists. Sandlin, supra note 142. 1 44. Original Albuquerque, N.M., Exec. Instruction No. 25, supra note 2. 145. Albuquerque/Bernalillo Cnty. Library Sys., Original Building Use Rules (on file with author). 146. Doe V. City ofAlbuquerque, No. 08-cv-0104l-MCA-LFG, slip op. at 42 (D.N.M. Mar. 31,2010). 147. See Library Organization & Policies, CiTY OF ALBUQUERQUE, http://www.cabq. gov/library/policies/index.html#conduct (last visited June 4, 201 1). 148. Original Albuquerque, N.M., Exec. Instruction No. 25, supra note 2. 1 49. Albuquerque, N.M., Exec InstructionNo. 25 : Amended Instruction Regarding Registered Sex Offenders in Public Libraries (May 6, 2010), available at http://www. solresearch.org/~SOLR/cache/gov/US/loc/NM-Alb/20100506-SOsInLibrary.pdf 150. Id 151. See supra Part II.A-B. 936 INDIANA LAW REVIEW [Vol. 44:919 including individuals who pose a minimal risk to children. ^^^ Each ban also restricts offenders' rights to some level of public library access.^^^ In addition, each ban—except the Iowa statute—designates law enforcement officers, as opposed to library employees, as the party responsible for enforcing the law.^^"^ Although these bans have many similarities, important differences exist among them as well. Of all the bans, only the original Albuquerque executive instruction applied solely to libraries. ^^^ The ordinances and the Iowa statute also apply to parks, schools, and day care centers. ^^^ The Iowa statute and the Stephenville ordinance not only prohibit sex offenders' presence at schools, child care facilities, public libraries, playgrounds, and swimming pools, but also forbid sex offenders to loiter within three hundred feet of these locations. ^^^ The Methuen ordinance extends the boundary for loitering to within five hundred feet of these locations. ^^^ The Iowa statute also prohibits sex offenders from working or volunteering at events or facilities where children are present. ^^^ The New Bedford and Methuen ordinances are unique because they exclude level one offenders in Massachusetts from their reach^^^ and apply only to more dangerous level two and three offenders. ^^^ The other bans fail to distinguish sex offenders based on their risk of recidivism. Another difference among the bans has to do with the communities' comparative experiences with sex offenders. Each ban seeks to protect individuals from sexual assault, but only the New Bedford ordinance^^^ and, arguably, the Iowa statute,^^^ responded to events in those jurisdictions.^^ The 1 52. Under federal law, a sex offense can be a crime with a sexual component or "a criminal offense that is a specified offense against a minor." 42U.S.C. § 1691 l(5)(A)(ii) (2006). Therefore, sex offenders include individuals who commit sex offenses only against adults. Also, an individual whose minor "victim" was a teenage boyfriend or girlfriend is unlikely to pose a risk to children generally. 153. See supra Part II.A-B. 154. Methuen, Mass., MUN. Code ch. 27, § 6(A)(2008);NewBedford,Mass.,Code§ 17- 26(2008);RowANCNTY.,N.C.,CODE§ 15-3(b)(2008); Stephenville, Tex., Code § 180.84(A) (2007); see also ORIGINAL ALBUQUERQUE, N.M., EXEC. INSTRUCTION No. 25, supra note 2. 155. Original Albuquerque, N.M., Exec. Instruction No. 25, supra note 2. 156. See supra Part II.A. 157. lowA Code Ann. § 692A.1 13(1) (West, Westlaw through May 19 of 201 1 Reg. Sess.); Stephenville, Tex., Code § 180.83. 158. Methuen, Mass., Mun. Code ch. 27, § 3(A)(4). 159. 5ee Iowa Code Ann. §692A. 11 3(3). 160. See METHUEN, MASS., Mun. Code ch. 27, § 1; New Bedford, Mass., Code § 17- 26(l)(a)(ii)(2008). 161. Methuen, Mass., MuN. Code ch. 27, § 1 ;NewBedford, Mass., Code § 17-26(1 )(a)(ii). The Quincy, Massachusetts ban also shares this quality, but it is even more tailored to only level three offenders. King, supra note 4. 1 62. New Bedford, Mass., Code § 1 7-26. 163. Iowa Code Ann. § 692A. 11 3. 1 64. See Des Moines Library StaffRescues Girlfrom Sex Offender, AM. LIBRARYAss'N (Oct. 201 1] NOT IN MY LIBRARY 937 original Albuquerque executive instruction/^^ Stephenville ordinance/ ^^ and Rowan County ordinance '^^ do not appear to respond to actual crimes committed in a public place, but only to the belief that a threat existed.'^^ All of the bans prohibit sex offenders from entering a public library legally, but each ban achieves this result through different levels of specificity/^^ The bans range from the detailed Methuen and New Bedford ordinances that focus on more dangerous sex offenders^^^ to the blunt Albuquerque executive instruction, which the local media described as the 'Tiring [of] another shot in . . . [Albuquerque mayor Martin Chavez's] war with sex offenders. "^^^ Ultimately, each ban creates a conflict between safety and liberty concerns. III. Conflicting Interests When convicted sex offenders' rights conflict with innocent children's safety, governments tend to protect children without reservation. Due to their law violations and, in some cases, abusive actions toward children, it is often difficult to promote consideration of sex offenders' interests. Nonetheless, sex offenders' interest in public library access should be seriously considered, as opposed to deeming their interest insignificant in comparison to the government's conflicting interest in child protection. A. Government Interests Governments have three primary interests in regulating sex offenders' post- release behavior: deterring criminal conduct, protecting the public from defendants' ftiture crimes, and meeting offenders' "educational, vocational, medicinal or other correctional needs."^^^ The state's constitutionally recognized police power authorizes deterrence of criminal conduct. ^^^ However, before a 7, 2005), http://www.ala.org/ala/alonline/cuiTentnews/newsarchive/2005abc/october2005ab/ desmoines.cftn (describing an incident at the Des Moines Public Library where a sex offender took a twent>-month-old girl into the men's bathroom); see also supra note 1 22 and accompanying text. 1 65. Original Albuquerque, N.M., Exec. Instruction No. 25, supra note 2. 166. Stephenville, Tex., Code § 180.80 (2007). 167. Rowan Cnty.,N.C., Code § 15-3 (2008). 168. See Rowan Cnty. Apr. 2 1 , 2008 Minutes, supra note 1 1 1 , at 1 9 (citing general protection of children as the ordinance's purpose). However, the City of Albuquerque claimed that its executive instruction was a response to the attack in New Bedford. See Doe v. City of Albuquerque, No. 08-cv-01041-MCA-LFG, slip op. at 26 (D.N.M. Mar. 31, 2010). 1 69. See supra Part II.A-B. 170. Methuen, Mass., Mun. Code ch. 27 (2008); New Bedford, Mass., Code § 17-26 (2008). 171. Libraries Ban Sex Offenders, KOAT ALBUQUERQUE (Mar. 5, 2008), http://www.koat. com/news/ 1 5493 567/detail.html. 172. United States v. Bender, 566 F.3d 748, 751 (8th Cir. 2009). 173. See U.S. CONST, amend. X. 938 INDIANA LAW REVIEW [Vol. 44:919 municipality may exercise this power, it must be delegated by the state. ^^"^ The government seeks to protect the public from all convicts' future crimes. However, it also possesses a heightened interest in the prevention of future sex crimes by known sex offenders, as evidenced by the U.S. Sentencing Guidelines, which discourage a decrease of a defendant's criminal history category if he or she is a "repeat and dangerous sex offender against minors."' ^^ Government officials who research the best methods to protect the public from sex offenders often conclude that prohibiting sex offenders from public areas is the most effective option. '^^ Although the government strives to protect all citizens from sex offenses, it focuses primarily on preventing children from becoming sex offenders' targets. '^^ Governmental bodies justify bans of sex offenders from public places on the premise that if sex offenders are not present where children gather, these individuals will be less tempted and have fewer opportunities to reoffend. '^^ The government seeks to protect children not only in public places, but also online. The Internet allows sex offenders to converse freely and anonymously with minors in teenage chat rooms. '^^ Consequently, restrictions on convicted sex offenders' computer and Internet usage attempt to protect children from this threat. '^^ Due to the harmful effects of sexual assault and the devious nature of many offenders, governments usually promote safety by restricting all sex offenders rather than creating restrictions targeted at only the most dangerous offenders.'^' Perhaps these governments fear that more targeted restrictions could provide some truly deviant lower-level sex offenders fiill access to society's privileges and therefore more opportunities to reoffend. Some sex offenders believe they are talented at identifying vulnerable children who are more easily groomed. '^^ 174. XO Mo., Inc. v. City of Maryland Heights, 362 F.3d 1023, 1027 (8th Cir. 2004). 175. U.S. Sentencing Guidelines Manual § 4A1.3(b)(2)(B) (2010). A "repeat and dangerous sex offender against minors" is someone whose current offense is a sex crime, who is not a career offender under section 4B 1 . 1 , and who has a prior sex offense conviction. Id. § 4B 1 .5(a). 176. See Standley v. Town of Woodfm, 661 S.E.2d 728, 729 (N.C. 2008). 177. Doe V. Miller, 405 F.3d 700, 714 (8th Cir. 2005). 178. See Janet Mandelstam & Carrie Mulford, Unintended Consequences ofSex Offender Residency Laws: Can GIS Mapping Help?, CORR. TODAY, Aug. 2008, at 104. 1 79. Virginia Kendall, TheLost Child: Congress 's Inability to Protect Our Teenagers, 92 Nw. U.L.Rev. 1307, 1307(1998). 1 80. See Marlon A. Walker, MySpace Removes 90, 000 Sex Offenders, MSNBC.COM (Feb. 3, 2009), http://www.msnbc.msn.com/id/28999365 (reporting that neither MySpace nor Facebook allows registered sex offenders to set up profiles). 181. See, e.g., Cal. PenalCode § 3003.5 (2010); Newark, N.J., Rev. Gen. Ordinances tit. XX, ch. 26A, § 1 (2008). 182. Salter, supra note 30, at 66. Definitions of "grooming" vary, but those who have examined the literature in this area provide the following overarching definition: A process by which a person prepares a child, significant adults and the environment for the abuse of this child. Specific goals include gaining access to the child, gaining 201 1] NOT IN MY LIBRARY 939 Preferential child molesters select victims based on age and will shower a victim with attention and gifts to gain the victim's trust. '^^ Once the offender gains the child's trust, the offender will molest and then "dump" the child, moving on to another victim.'^'* Consequently, the deceitftil nature of many child molesters prompts governments to adopt far-reaching restrictions to prevent children from experiencing the pain associated with intense seduction followed by immediate rejection. The protection of children from sexual abuse and its devastating effects is a high priority for reasons of public policy. Child victims of sexual assault are more likely to abuse alcohol and drugs, suffer from depression, anxiety, nightmares, and social isolation, and commit suicide. ^^^ These children feel responsible for upsetting their family members if they report abuse and often blame themselves for the abuse. '^^ Many childhood sexual abuse survivors feel guilt and shame and continue to experience emotional and psychological isolation long after the physical abuse has ceased. '^^ However, governments are also interested in reintegrating paroled offenders into society. '^^ Governments attempt to accomplish this task by meeting sex offenders' "educational, vocational, medicinal or other correctional needs" during the supervised release period. '^^ Nevertheless, a conflict exists between the government's interests in sex offenders' rehabilitation and public protection. '^^ the child's compliance and maintaining the child's secrecy to avoid disclosure. This process serves to strengthen the offender's abusive pattern, as it may be used as a means ofjustifying or denying their actions. Samantha Craven et al., Sexual Grooming of Children: Review of Literature and Theoretical Considerations, 12 J. SEXUAL AGGRESSION 287, 297 (2006). Serial sex offenders move from community to community, hand-picking not only children to groom, but their families as well. Once a family completely trusts the offender, even when suspicions arise, the offender can easily quell the family by pointing back to that trust. See Salter, supra note 30, at 42-44. 183. Kendall, supra note 179, at 1312; see generally FLOWERS, supra note 29, at 106-08 (distinguishing preferential child molesters, who are sexually attracted to children, from situational child molesters, who are not attracted to children). 184. Kendall, supra note 179, at 1312. 185. 5eeNew York v. Ferber, 458 U.S. 747, 756-57 (1982) ("It is evident . . . that a [sjtate's interest in 'safeguarding the physical and psychological well-being of a minor' is 'compelling.'") (quoting Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 607 (1982)). 186. Kim English et al., Community Containment of Sex Offender Risk: A Promising Approach, in PROTECTING SOCIETY FROM Sexually Dangerous Offenders: Law, Justice, and Therapy, supra note 33, at 265, 267. 1 87. See Shirley Julich, Stockholm Syndrome and Child Sexual Abuse, 14 J. CHILD SEXUAL ABUSE107, 114, 117(2005). 188. Mat 116, 117. 189. See Boykin v. Thaler, No. H-06-3291, 2009 WL 3448176, at *4 (S.D. Tex. Oct. 26, 2009). 190. United States v. Bender, 566 F.3d 748, 751 (8th Cir. 2009). 191. See Emily Brant, Comment, Sentencing "Cybersex Offenders": Individual Offenders 940 INDIANA LAW REVIEW [Vol. 44:9 1 9 When this conflict arises, poHtical pressure may influence the government to severely restrict sex offenders to promote public safety, but government restrictions on sex offenders should not preclude rehabilitation.'^^ B. Sex Offenders ' Interests in Using Public Library Materials Libraries possess resources that allow offenders to become more knowledgeable, insightful, and productive in civic activities. '^^ The corrections system expects offenders on parole or probation to secure and retain employment, often without job placement assistance prior to prison release. '^"^ Securing employment significantly reduces the likelihood that an offender will recidivate, '^^ but without access to employment information, many offenders experience difficulty finding a job.'^^ Public libraries can help offenders achieve this rehabilitation objective through services many libraries already provide, such as access to job advertisements, online applications, and workshops on resumes and cover letters }^^ Libraries also allow sex offenders to become more active citizens by providing access to information on how to engage in government processes. '^^ Access to a wide variety of materials, especially citizenship and democratic process related materials, furthers the First Amendment goal of "producing an informed public capable of conducting its own affairs."'^^ Additionally, access to information is becoming more a need than a luxury^^^ as more information Require Individualized Conditions When Courts Restrict Their Computer Use andInternet Access, 58 Cath. U. L. Rev. 779, 803 (2009). 192. See id. 193. See, e.g., Mark Edmundson, Against Readings, Chron. Rev., Apr. 24, 2009, at B7 (discussing how Malcolm X taught himselfhow to read by copying down the dictionary while he was in prison). 1 94. Wendy Heller, Note, Poverty: The Most Challenging Condition ofPrisoner Release, 1 3 Geo. J. ON Poverty L. & Pol'y 219, 222 (2006). 195. See id. 196. Id 197. See, e.g.. Technology @ Your Library, KALAMAZOO PUB. LIBRARY, http://www.kpl.gov/computer-training/ (last modified June 4, 201 1). 198. See Anne Goulding, Libraries and Social Capital, 36 J. LIBRARIANSHIP & iNFO. Sci. 3, 5 (2004). 199. Red Lion Broad. Co. v. Fed. Commc'ns Comm'n, 395 U.S. 367, 392 (1969). 200. See Peter Hemon& Harold C. Relyea, Information Policy, in ENCYCLOPEDIAOFLIBRARY 6 Information Science 1 300, 1 300 (Miriam A. Drake ed., 2d ed. 2003) ("Information is 'essential to our existence' and assumes a 'life of its own.'"). Many programs seek to assist needy individuals, but they must be able to learn about these programs to take advantage of them. See, e.g.. Access to Information May Mean More Cash for College, SCH0LARSHIPS.COM, http://www.scholarships.com/fmancial-aid/fmancial-aid-information/access-to-information-may- mean-more-cash-for-college/ (last visited June 4, 201 1). 2011] NOT IN MY LIBRARY 94 1 becomes available only online.^^^ Materially poor individuals experience great difficulty accessing this information.^^^ States recognize the importance of providing Internet access to all people and have equipped public Hbraries with additional electronic resources in an attempt to compensate for the uneven distribution of information resources.^^^ Although individuals concerned about unequal access to information currently focus on Internet availability, access to all types of media is important. Individuals with a more extensive knowledge base are more likely to absorb additional information in the future.^^"^ This initial knowledge base functions as a schema individuals use to filter new information and subconsciously decide to ignore or commit to memory each new idea.^^^ Therefore, individuals with a larger knowledge base are more likely to recognize a greater percentage of the new knowledge they encounter and incorporate more new ideas.^^^ Conversely, individuals with a limited knowledge base are less likely to recognize new information and will reject a greater percentage of new ideas, maintaining information poverty.^^^ Therefore, an information gap between the "information-rich" and "information-poor" grows dramatically as those with a larger knowledge base accumulate more knowledge at faster rates and those without a substantial knowledge base fail to accumulate the additional knowledge they encounter.^^^ This information gap impedes communication and interaction with others, and information-poor individuals may not be able to make informed decisions if they vote. Ultimately, denying sex offenders access to library resources is likely to prevent their full rehabilitation, future active citizenship, and self-improvement. 201. Rebecca Carrier, On the Electronic Information Frontier: Training the Information-Poor in an Age of Unequal Access, in Cyberghetto OR Cyberutopia?: RACE, CLASS, AND GENDER ON THE Internet 153 (Bosah Ebo ed., 1998) ("As information takes an even greater role in determining social class, those who have the greatest abilities to retrieve and process the most important information will be separated from other members of society."). 202. Jutta Haider & David Bawden, Conceptions of "Information Poverty" in LIS: A Discourse Analysis, 63 J. DOCUMENTATION 534, 546 (2007). 203. Carrier, supra note 201, at 154; see also Elizabeth Anne Buchanan, Ethical Transformations in a Global Information Age, 13 TECH. Servs. Q. 23, 30 (1996) ("[0]nly [in] the United States . . . will the information age have its own form of 'information welfare,' where some can access the Internet from public places and be given an information subsidy."). 204. See Carrier, supra note 201 , at 157. 205. Mat 157-58. 206. Id 207. Id. at 158; see also Reijo Savolainen, Everyday Life Information Seeking, in Encyclopedia of Library & Information Science 1780, 1783 (3d ed. 2010) ("[SJituational relevance is instrumental in explaining information poverty. Potentially useftil information will be not used because people living in a small world do not see a generalized value of sources provided by outsiders intended to respond to their situation. The source is ignored because it is not legitimized by 'contextual others.'"). 208. See Carrier, supra note 201, at 157-58. 942 INDIANA LAW REVIEW [Vol. 44:9 1 9 IV. First Amendment Freedom Of Speech The First Amendment reads, in relevant part, "Congress shall make no law . . . abridging the freedom of speech."^^^ However, this amendment protects more than one's ability to speak.^'^ One of the many additional activities it protects is access to a public library.^^^ Generally, restrictions on behavior that are not related to the expression of a particular message will be upheld, but if a restriction is not sufficiently tailored to the government's interest, it will be overtumed.^'^ A. Is Protected Expression Involved? First Amendment free speech protection includes many forms of expression other than spoken words.^'^ The Supreme Court has upheld flag buming^^"^ and students' display of black armbands to protest the Vietnam War^^^ as protected expressive activity. The Court has even deemed reading obscene material a protected activity if it took place in the privacy of an individual's home.^^^ However, not all actions with an expressive element enjoy First Amendment protection, as shown in Doe v. City of Lafayette?^^ In this case, the Seventh Circuit rejected a sex offender's argument that his banishment from city parks punished him solely for thoughts about molesting children and held that the offender had not shown that this restriction prevented his engagement in expressive conduct.^ ^^ Therefore, it appears that if the purpose is to express a viewpoint, courts are more likely to protect the expression. However, if the expression is merely incidental to conduct, courts may refuse to protect the expression. B. Right to Access Public Libraries The Third Circuit has held that the First Amendment "includes the right to some level of access to a public library, the quintessential locus of the receipt of information."^^^ This right has foundations in freedom of speech and the 209. U.S. Const, amend. I. 210. See Doe v. City of Lafayette, 377 F.3d 757, 763 (7th Cir. 2004) (en banc). 211. Kreimer v. Bureau of Police, 958 F.2d 1242, 1255 (3d Cir. 1992). 212. See United States v. Bender, 566 F.3d 748, 753 (8th Cir. 2009). 213. C//yo/Iq/aye//e, 377F.3dat763. 214. Texas v. Johnson, 491 U.S. 397, 420 (1989). 215. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969). 216. Stanley v. Georgia, 394 U.S. 557, 568 (1969). 217. See City ofLafayette, 2,11 F.3d. at 767. 218. Mat 761, 764. 219. Kreimer v. Bureau of Police, 958 F.2d 1242, 1255 (3d Cir. 1992). Sex offenders also have a right to access public libraries under the American Library Association's Library Bill of Rights, which—although it does not have the authority to grant legal rights—^provides, "A person's right to use a library should not be denied or abridged because of origin, age, background, or 2011] NOT IN MY LIBRARY 943 associated right to receive information.^^^ In Red Lion Broadcasting Co. v. FCC^^^ the Supreme Court announced that a government actor cannot abridge "the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences. "^^^ This prohibition also applies to libraries because "[t]he library ... is in a sense a perfect incarnation of 'the marketplace of ideas. '"^^^ 7. Right to Receive Information.—First Amendment jurisprudence encourages the presentation of multiple viewpoints regarding controversial topics.^^"* In Griswoldv. Connecticut,^^^ the Supreme Court clearly expressed that ''the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge."^^^ The Gmwo/KL(July 7, 2009), http://www.accessola.com/olba/bins/content_page.asp?cid=66-827-3301 (noting that the Iowa statute does not specify how library personnel can distinguish sex offenders from other patrons entering the library); Kris Todd, Library Considers Sex Offender Law Impact, Daily Rep. (June 16, 2009), http://www.spencerdailyreporter.com/story/1547582.html (quoting the Spencer, Iowa city attorney: "You don't have to enforce this law. You don't have to prepare a listing of these offenders and make sure they never set foot in the library."). 285. IowaCode Ann. § 692A.1 13(1 )(f)(West, Westlaw through May 19 of201 1 Reg. Sess.); Methuen, Mass., Mun. Code ch. 27, § § 1 , 3 (2008); NewBedford, Mass., Code § 1 7-26 (2008); Rowan Cnty.,N.C., Code § 15-3 (2008); Stephenville, Tex., Code § 130.81-.82(2007). 286. These bans are content-neutral because they prohibit offenders' presence in many places where expressive activities do not occur, such as parks and playgrounds. See supra Part II.A. 287. Doe, No. 08-cv-01041-MCA-LFG at 25 (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)). 288. See R. George Wright, Content-Basedand Content-Neutral Regulations ofSpeech: The Limitations ofa Common Distinction, 60 U. MIAMI L. Rev. 333, 347 (2006) ("In an age of official insecurity and anxiety, the most difficult constitutional problem may not be controlling arbitrariness 2011] NOT IN MY LIBRARY 949 offender attacking a previously unknown child in a public library,^^^ courts should consider the potential harm—not the hype—and apply a more stringent level of scrutiny to ensure that the restriction is appropriate.^^^ Ultimately, to be held constitutional, the restriction should be very closely tailored to the governmental interest. The state interest asserted to justify these bans is usually a general one, such as protecting children,^^' but there are usually three common concerns. First, society seeks to protect children's physical safety inside libraries.^^^ Second, legislators seek to prevent the exposure of children to inappropriate behavior and images.^^^ Third, concerned individuals seek to prevent sex offenders from contacting minors via the Internet. The government has a compelling interest in protecting children from physical harm,^^"^ but the fact that some risk is associated with a speech activity is not sufficient for a First Amendment exception.^^^ In this case, the risk is associated with sex offenders' physical presence, but that presence in the library is necessary for the sex offender to hear and engage in further protected speech. In Marsh v. Alabama,^^^ the Supreme Court held an Alabama statute criminalizing the conduct of entering or remaining "on the premises of another after having been warned not to do so" unconstitutional as applied to an individual who sought to distribute religious literature.^^^ Simply entering another's premises does not involve expressive activity, just as entering the library does not. However, just as the plaintiff in Marsh sought entry to others' property to engage in protected activities, sex offenders seek entry to the library to exercise their right to receive information. Even though these legislative bans are content-neutral, they are unconstitutional because they lack sufficient tailoring to the government' s interest in child protection. The prohibition of sex offenders from libraries is not in permitting, but compensating for a chronic tendency to overestimate the likelihood of any damage to public security from public exercises of freedom of speech."). 289. Of 224 recidivist sex offenders' offenses studied by the Minnesota Department of Corrections, only six (less than 3%) took place in an "interior public location." Minn. Dep'T of CORR., supra note 62, at 12. 290. See Wright, supra note 288, at 348. 291 . See Methuen, Mass., Mun. CODE ch. 27 (2008); Stephenville, Tex., Code § 130.80 (2007); Rowan Cnty. Apr. 21, 2008 Minutes, supra note 1 1 1, at 19. 292. See Szaniszlo, supra note 1 22 (implying that the City ofNew Bedford sought to prevent additional rapes on public property). 293 . See Encamacao, supra note 1 1 3 (citing exposure ofteenagers to adult men masturbating while viewing pornography on a library computer as a concern). 294. New York v. Ferber, 458 U.S. 747, 756-57 (1982). 295. See Martin v. City of Struthers, 319 U.S. 141, 145 (1943) (acknowledging the risks of door-to-door pamphlet distribution, including nuisance and subsequent theft from homes, but concluding that the importance of the First Amendment activity outweighed the risks). 296. 326 U.S. 501(1946). 297. M at 504, 509. 950 INDIANA LAW REVIEW [Vol. 44:9 1 9 comparable to Kreimer, where an individual's body odor bothered other patrons.^^^ The bans assume that a sex offender's mere presence threatens child safety because the sex offender may commit a violent act, but children can be safe even if sex offenders are present. Most sex offenders do not offend against children unknown to them,^^^ so this risk, like the risk of nuisance or theft in Martin, is not sufficiently probable to justify denying First Amendment rights to a broad class of citizens. There are also less speech-restrictive ways to protect children in the library, such as hiring security guards or installing cameras.^^^ Even a narrower ban of sex offenders from the library's children's area would be a more tailored response than comprehensive library bans, which include areas children do not visit.^^^ An overinclusive restriction, or one that "restricts a significant amount of speech that doesn't implicate the government interest,"^^^ is not narrowly tailored. Because sex offenders include a variety of individuals^^^ who have committed a wide range of acts,^^"^ it is unrealistic to assume that all sex offenders will sexually 298. Kreimer v. Bureau of Police, 958 F.2d 1242, 1247 (3d Cir. 1992). 299. See SALTER, supra note 30, at 235-40 (categorizing attacks by strangers as low-risk and noting that if they do occur, the stranger has often been stalking the child for a significant period of time); Lenore M.J. Simon, Matching Legal Policies with Known Offenders, in PROTECTING Society from Sexually Dangerous Offenders: Law, Justice, and Therapy, supra note 33, at 149-50 (noting that strangers commit less than 10% of sex crimes against children); Merriam & Salkin, supra note 60, at 98 (noting that usually, "it is not strangers who seek out victims at schoolyards, playgrounds, and bus stops. While the most shocking of sex crimes involves the abduction ofa young child—a complete stranger to the sex offender—who is then sexually abused and murdered, statistically this is an outlier."). 300. See infra ?artW.D. 301. Libraries should also provide a separate computer area for children and families. This would help prevent assault of children while inattentive caretakers are on the computer. See Szaniszlo, supra note 122 (reporting that a six-year-old boy was raped in the stacks while his mother was on a computer a few feet away); AM. LIBRARY Ass'N, supra note 164 (describing an incident at the Des Moines Public Library where a sex offender took a twenty-month-old-girl while her babysitter was on the computer). 302. Eugene Volokh, The First Amendmentand Related Statutes: Problems, Cases AND Policy Arguments 220 (3d ed. 2008). 303. Sex offenders are not all alike. . . . Some commit violent sexual rapes and assaults on strangers. Others commit sex crimes against members of their own families. . . . And, there are other offenders who engaged in unusual sexual activity, such as exposing themselves or voyeurism. To consider all ofthese different types ofoffenders and their offenses under a single descriptive category of "sex offenders" is misguided. LaFond, supra note 22, at 43-44. 304. A nineteen-year-old male who engages in consensual sex with his fifteen-year-old girlfinend and an individual who abuses over two hundred children are currently indistinguishable in some jurisdictions when identified with the label of "sex offender." Steve James, Comment, Romeo andJuliet Were Sex Offenders: An Analysis ofthe Age ofConsent and a Callfor Reform, 2011] NOT IN MY LIBRARY 95 1 abuse a child if allowed in the library. Although some of the bans are limited to sex offenders whose victims were minors,^^^ or to higher level offenders,^^^ they still encompass many individuals who probably do not pose a significant danger to children in the library. Even individuals who sexually abused children in the past are unlikely to be sufficiently uninhibited to molest a child in a public place.^^^ Furthermore, although SVPs cannot control their behavior, these individuals are also unlikely to assault a child in a public library because they are usually placed in inpatient treatment facilities and do not travel freely in the community.^^^ By distinguishing among different levels of sex offenders actually present in the community, bans could be more tailored by varying the severity of restrictions according to the risks each level of offenders presents. Nevertheless, denial of some library activities—such as access to online pornography—might further the government's compelling interest in child protection. Some sex offenders view pornography as part of their offense preparation.^^^ For many offenders, "pornography affects the offense cycle by strengthening cognitive distortions, reducing inhibitions, and reinforcing deviant sexual arousal."^^° However, a more narrow restriction of sex offenders' Internet privileges would be sufficient to address this concem.^^^ The government also has a legitimate interest in preventing sex offenders' communication with children.^ ^^ Some sex offenders use the Internet to engage in sexual conversations with minors, and these conversations present public safety concerns.^ ^^ 78 UMKC L. Rev. 241 , 243-44 (2009). 305. Iowa Code Ann. § 692A.113 (West, Westlaw through May 19 of 2011 Reg. Sess.); Stephenville, Tex., Code § 130.82 (2007). 306. Methuen, Mass., Mun. Code ch. 27, § 1 (2008); New Bedford, Mass., Code § 17- 26(l)(a)(ii)(a) (2008). 307. Butsee Eric Pierce, ManArrestedfor SexualAssaults atLibrary, DOWNEYPATRIOT (Apr. 23, 201 0), http://www.thedowneypatriot.eom/view/full_story/7 1 79860/article-Man-arrested-for- sexual-assaults-at-library?instance=pierce_left_column. 308. Hall, supra note 25, at 186. 309. Brian W. McKay, Note, Guardrails on the Information Superhighway: Supervising Computer Use ofthe Adjudicated Sex Offender, 106 W. Va. L. Rev. 203, 207 (2003). 3 1 0. Id. at 206; see also Abby Simons, Library Sex Offender Incident Fuels Internet Filter Push, Des Moines Reg., Nov. 21, 2005 (on file with author) (reporting that a sex offender who allegedly molested a child in the library restroom had used library computers to view pornography). 311. SeeinfraVdiTiVB. 312. See Berkman Ctr. FOR Internet & Soc'y, Enhancing Child Safety & Online Technologies 4 (Dec. 31, 2008), available at http://cyber.law.harvard.edu/sites/cyber. law.harvard.edu/files/ISTTF_Final_Report-Executive_Summary.pdf("Sexual predation on minors by adults, both online and offline, remains a concern."). 313. McKay, supra note 309, at 2 1 0; see also Berkman Ctr. FOR INTERNET & Soc'Y, supra note 3 12, at 4 (noting that in many cases where adults solicit minors, the minors were "aware that they were meeting an adult male for the purpose of engaging in sexual activity"). However, other findings include that minors solicit sex from each other more frequently than adults solicit minors. 952 INDIANA LAW REVIEW [Vol. 44:9 1 9 Bans of sex offenders from public libraries are not narrowly tailored to further the government interest in protecting children from sex offenders on the Internet because they are underinclusive.^^"^ The library bans do not prevent sex offenders' Internet access and communication with children at other locations, such as sex offenders' homes. The bans are also overinclusive; they prevent sex offenders from engaging in protected First Amendment activities, including reading, that are unrelated to the state interest in protecting children. Furthermore, a complete ban of sex offenders is also not narrowly tailored to the concern that children will be exposed to inappropriate behavior and images. It is possible that an individual who is not a registered sex offender might look at pornography on a computer and masturbate in the library. Although bans of sex offenders from public libraries may limit their access to pornography to use in grooming potential victims,^ ^^ a blanket ban from the library is not necessary to further this goal. Stricter filters and monitoring would be sufficient.^ ^^ Therefore, the bans lack narrow tailoring. Governmental bodies may attempt to justify bans of sex offenders from libraries by arguing that alternative avenues to information exist, such as television and radio.^^^ However, unlike public library computers, these media do not allow offenders the same opportunities—namely, the ability to apply for employment or other programs online. Although these legislative bans are content-neutral, they do not withstand the requisite scrutiny because they lack sufficient tailoring to the government's interests and fail to provide ample alternative channels for communication. B. Subject Sex Offenders to More Stringent Internet Filters Libraries should apply more restrictive Internet filters to sex offenders' public library computer accounts to disable access to pornographic and social and that cyber-bullying is a much greater online threat than sexual solicitation. Id. Although these teen-created threats pose the greatest problems, it is highly unlikely that legislatures would deny Internet access to all individuals under the age of eighteen. The House of Representatives has, however, considered requiring schools and libraries receiving federal funding to prevent minors from accessing social networking sites via school and library computers. See Deleting Online Predators Act of 2007, H.R. 1 120, 1 10th Cong. (2007). 3 14. Underinclusive restrictions fail "to restrict a significant amount ofspeech that harms the government interest to about the same degree as does the restricted speech." Volokh, supra note 302, at 221. 315. McKay, supra note 309, at 208. 316. 5ee m^flf Part V.B-C. 317. But see Schneider v. State, 308 U.S. 147, 163 (1939) ("[0]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place."). Another problem is that some materials, such as local history archives and genealogy records, are available only at one library. See, e.g.. Genealogy Resources Available at Our Library, Tex. State LIBRARY & ARCHIVES Comm'n, http://www.tsl.state.tx.us/arc/genfirst. html (last updated Mar. 3 1, 201 1). 201 1] NOT IN MY LIBRARY 953 networking websites. Although this tactic still restricts speech, it does so only to the extent necessary to serve the governmental interest in child protection. This closer tailoring would allow such a library policy to survive a First Amendment challenge. Internet filters have been previously challenged. In Mainstream Loudoun v. Board ofTrustees ofthe Loudoun County Library^^^ the court held that blocking pornography via computer software was a content-based prior restraint on First Amendment activity.^ '^ The court held the mechanism unconstitutional because the library could not show that its interests in preventing sexual harassment and obstructing access to child pornography required blocking all pornography. ^^^ However, an important distinction exists between Mainstream Loudoun and the proposed implementation ofmore stringent Internet filters for sex offenders. Specifically, the proposed filters would apply only to sex offenders, not all adults, as in Mainstream Loudoun. Evidence that pornography can trigger sex offenders to abuse children could be offered to support a carve-out from Mainstream Loudoun. Nevertheless, without substantial empirical evidence to prove a nexus between pornography and child molestation, a court will likely reject it. The Supreme Court has described the link between pornography and attacks as "contingent and indirect. The harm does not necessarily follow fi"om the speech, but depends upon some unquantified potential for subsequent criminal acts."^^' However, the Court provided this reasoning because sex offenders' crimes should not prevent law-abiding citizens fi-om consuming virtual child pornography. ^^^ If only sex offenders' access were at issue, a court might be more willing to consider restrictions because they would be narrowly tailored to a government interest in preventing recidivism by convicted sex offenders. A more recent case. United States v. American Library Ass 'n,^^^ supports public libraries' use of Internet filters. ^^"^ The Court held that the federal government could require public libraries receiving federal funds to use Internet filtering software to prevent patrons' access to pornography.^^^ However, the statute at issue—^the Children's Internet Protection Act^^^—allowed the filter to be disabled "to enable access for bona fide research or other lawful purposes. "^^^ Other federal ftinding requirement statutes also allowed library employees to disable Internet filters for adults. ^^^ If sex offenders had a unique authorization connected to their usemames, an Internet system could be configured so that 318. 24 F. Supp. 2d 552 (E.D. Va. 1998). 319. Id at 570. 320. Id at 566-67. 321. Ashcroft v. Free Speech Coal., 535 U.S. 234, 236 (2002). 322. Id 323. 539 U.S. 194(2003). 324. Id. at 214 (plurality opinion). 325. Id 326. 20 U.S.C. § 9134(f) (2006). 327. Id § 9134(f)(3). 328. Am. Library Ass 'n, 539 U.S. at 201. 954 INDIANA LAW REVIEW [Vol. 44:919 employees could not disable the filters. Although sex offenders usually are adults who would normally be allowed to have the filters disabled, the risk offenders pose to children on the Internet could be sufficient to justify limited access. C. Track Sex Offenders ' Internet Viewing Trails The most narrowly tailored solutions to sex offender computer use issues allow sex offenders to access email and informative websites but preclude access to pornography, social networking, and instant messaging websites.^^^ Parole officers can enforce paroled sex offenders' computer and Internet use restrictions through unannounced inspections of sex offenders' computer hard drives. ^^^ Public libraries could employ an analogous strategy and use library employees to monitor lists of websites sex offenders access on library computers as tracked by spyware.^^^ Although spyware's capabilities exceed the ability to track offenders' Internet browsing habits,^^^ a simple review of the website addresses sex offenders visit would be sufficient to ensure that sex offenders have not accessed prohibited websites. This method is the least invasive way to confirm that sex offenders are not visiting websites that might lead to further sexual abuse. Reviewing the list of website addresses an individual sex offender visits does not invade an offender's privacy any more than viewing an offender's record of checked-out books. Librarians' commitment to confidentiality^^^ should safeguard sex offenders' privacy. However, there might be Fourth Amendment search implications.^^"^ D. Increase Surveillance ofLibrary Patrons Children harmed in public libraries are often accompanied by inattentive caretakers. ^^^ Consequently, employing more security staff would provide 329. However, with Internet monitoring software such as Cyber Sentinel, which sends an e- mail to an offender's probation officer based on dangerous keywords, it might be possible to allow sex offenders to access social networking websites while keeping children safe. See John Schwartz, Internet Leash Can Monitor Sex Offenders, N.Y. TIMES, Dec. 31, 2001, at C4, available at http://www.nytimes.com/2001/12/31/business/intemet-leash-can-monitor-sex-offenders.html. 330. United States v. Freeman, 316 F.3d 386, 392 (3d Cir. 2003). 33 1 . See Rebecca Porter, Who 's Watching Your PC?, Trial, Aug. 2004, at 44. 332. See id. 333. See Code ofEthics ofthe American Library Association, AM. LIBRARY Ass'N (Jan. 22, 2008), http://www.ala.org/ala/issuesadvocacy/proethics/codeofethics/codeethics.cfm ("We protect each library user's right to privacy and confidentiality with respect to information sought or received, and resources consulted, borrowed, acquired or transmitted."). 334. The Fourth Amendment provides "[t]he right of the people to be secure . . . against unreasonable searches and seizures." U.S. Const, amend. IV. For a general discussion of the Fourth Amendment implications of government surveillance of electronic communications, see Johrmy Oilman, Comment, Carnivore: The Uneasy Relationship Between the Fourth Amendment and Electronic Surveillance ofInternet Communications, 9 CommLaw CONSPECTUS 1 1 1 (2001). 335. See sources cited supra note 301. 201 1] NOT IN MY LIBRARY 955 additional individuals to monitor threats to children's safety.^^^ Uniformed security also serves as a deterrent to abuse; sex offenders would be aware of this surveillance, which would demonstrate the gravity of violations of the library's building use rules or state and federal laws. Unlike sex offender bans, this increase in security would serve as a preventative measure against not only known sex offenders, but also other individuals who have not been caught and identified as sex offenders. Additional security personnel would also be able to enforce library policies that are more targeted towards protecting children—for example, New Bedford Free Public Library's rule that young children be attended at all times and its prohibition of adults talking to minors if the adult is not the child's relative or caregiver.^^^ The presence of security staff would also deter harm to all library patrons, regardless of whether a dangerous individual is a sex offender or not.^^^ Although there are many advantages to employing security staff, many libraries cannot afford current operating costs, let alone additional staff expenses.^^^ Uniformed security guards serve as an additional deterrent because they are identifiable, but there may be less expensive alternatives that are just as effective. Libraries could encourage patrons to develop a "neighborhood watch" system in the library where patrons watch for suspicious patrons, especially in the vicinity ofunattended children. Neighborhood watch programs have been found to be somewhat effective at reducing neighborhood crime^'^^ and could be effective in the library as well. Ultimately, children need to be monitored; this function can be performed by a paid employee or a concerned citizen. If libraries implemented a watch program, they could post "library watch" signs to inform 336. Sometimes security guards are the only "eyes" watching out for children. An unaccompanied twelve-year-old girl with learning disabilities was sexually assaulted in a Michigan library while she was walking down an aisle. See People v. Xiong, No. 270213, 2007 WL 2781027, at *1 (Mich. Ct. App. Sept. 25, 2007). 337. Policy on Library Behavior, NewBedF0RD-MA.GOV, http://www.newbedford- ma.gov/Library/policyBehavior.html (last visited June 5, 201 1). The Boston Public Library also limits the use of the library's children's rooms to "children, their parents, guardians, teachers, and caregivers, and people researching children's literature." Safe Child Policy, Bos. PUB. LIBRARY (Mar. 23, 2004), http://www.bpl.org/general/policies/safechild.htm. 338. Security guards are physical reminders ofthe consequences associated with wrongdoing. People are less likely to commit crimes in locations with security guards. See Bank Robber: Security Guards Deter People Like Him, ASSOC. PRESS Newswires, Mar. 10, 2008 (on file with author). 339. See, e.g., Jennifer Buske, County Executive Offers BudgetFull ofCuts; Proposals Include Reducing Staff Closing Libraries and Halting Road and Park Projects, WASH. PoST, Feb. 18, 2010, at T17; Heather Scofield, Libraries in Danger ofClosing; Volusia Officials Lookfor Ways to Cut Costs, Daytona Beach News J., Dec. 1, 2009, at IC. 340. Katy Holloway et al., U.S. Dep't of Justice Office of Cmty. Oriented Policing Servs., Crime Prevention Research Review No. 3: Does Neighborhood Watch Reduce Crime? 28 (2008), available at http://www.cops.usdoj.gov/files/RIC/Publications/e040825 1 33-res- review3.pdf 956 INDIANA LAW REVIEW [Vol. 44:919 individuals that others are watching. These signs would serve the notice function in lieu of a uniformed security guard. Installing security cameras in low traffic and low visibility areas like the stacks might also act as a deterrent and would be less expensive than security staff. Although one might argue that this could chill speech by discouraging patrons from examining specific books, this is unlikely because the cameras would be positioned to capture the aisle where inappropriate activity might take place. It is unlikely that the zoom and angle would be sufficient to allow a person to identify the title of any book. Library personnel examining the footage would also have a duty to maintain patrons' confidentiality, just as they would for items checked out.^"^' Conclusion Sexual abuse ofchildren is an indisputably horrendous offense, and offenders should be punished accordingly. However, sex offenders who have served their sentences remain United States citizens whose rights should be respected. First Amendment jurisprudence does not allow speech activities to be regulated in ways that are not closely tailored to achieving a significant governmental interest. ^"^^ Protecting children from sexual abuse is a significant governmental interest; nevertheless, states and municipalities can achieve this interest more effectively through less speech-restrictive measures than blanket bans of sex offenders from public libraries. If libraries implemented increased electronic surveillance and employed security personnel, sex offenders could exercise the First Amendment rights that some governments currently deny, and society would receive more effective protection for child and adult library patrons alike. 341 . See supra note 333 and accompanying text. 342. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).