Former Sex Offenders Can Proceed with Lawsuit Challenging Restrictions on Internet Use


The plaintiffs contend that the IDOC policies inhibit rehabilitation, interfere with their ability to reintegrate with the community and claim that there is a much less speech-restrictive alternative to a flat ban on internet access.

A group of former sex offenders may continue with their lawsuit, challenging the constitutionality of the Illinois Department of Corrections (IDOC’s) restrictive policy on internet access for those convicted of sex crimes. A federal district court has ruled that it is premature at this early stage of the litigation to dismiss the lawsuit.

Jason Tucker, Daniel Barron, Jeffrey Kramer and Jasen Gustafson filed a lawsuit against the director of the IDOC, contending that its restrictive policies violate their First Amendment rights to free speech and other constitutional freedoms.

All four of the plaintiffs are registered sex offenders now on parole. Tucker and Barron committed sex crimes that did not involve use of the internet, while Kramer and Gustafson downloaded images of child pornography from the internet.

The IDOC prohibits sex offender parolees from ever accessing the internet if they committed an internet-related offense. The IDOC also limits parolees who did not use the internet to commit a sex offense from using the internet. Such parolees can only use the internet on a case-by-case basis. They are prohibited from using social media or any website that “focuses primarily on blogs, forum and/or discussion groups.”

The plaintiffs contend that the IDOC policies inhibit rehabilitation and interfere with their ability to reintegrate with the community. They also allege that there is a much less speech-restrictive alternative to a flat ban on internet access, namely a hardware- or software-monitoring service.  The plaintiffs also contend that the policy negatively impacts their family members, because the IDOC rules prohibit sex offenders from residing at any home that has internet access.

The IDOC countered that the policies were a legitimate and rational way to protect children from sex abuse. The IDOC pointed to application of the deferential standard of review the U.S. Supreme Court established in Turner v. Safley (1987), which asks whether or not a prison policy reasonably relates to a legitimate penological concern.

The IDOC argues that its internet policy is related to its “critical interest in protecting children from abuse.”

However, U.S. District Court Judge John Z. Lee of the Northern District of Illinois reasoned in his Sept. 17, 2019, decision in Tucker v. Baldwin that more discovery is needed to assess the constitutionality of the restrictions.

“This case is not so clear cut,” he wrote. “Given the allegations of plaintiffs’ complaint and the lack of an evidentiary record, the dismissal of plaintiffs’ First Amendment claim would be premature at this stage.”

David L. Hudson Jr. is a First Amendment fellow at the Freedom Forum Institute and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).

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