. . . a statute that regulates speech is subjected to exacting scrutiny: The State must show that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. . . . In contrast, a regulation that governs conduct while imposing only an incidental burden upon speech must be evaluated in terms of [its] general effect . . . [and] is permissible so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. [internal quotations and citations omitted]
“access a commercial social networking Web site [that] . . . permits minor children to become members or to create or maintain personal Web pages on the [site].”
“(1) Is operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site;(2) Facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges;(3) Allows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Web site; [and](4) Provides users or visitors to the commercial social networking Web site mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.”
“(1) Provides only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform; or(2) Has as its primary purpose the facilitation of commercial transactions involving goods or services between its members or visitors.”
** And I wonder whether the VC itself, and/or washingtonpost.com, are within the statutory definition of “commercial social networking Web site.” We certainly “permit minor children to become members” and to “maintain personal Web pages” (via their Profile pages), the site is “operated by a person who derives revenue from . . . advertising,” the site “[f]acilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchange,” we “[a]llow users to create Web pages or personal profiles that contain information such as the name or nickname of the user,” and — through the Facebook links — we “[p]rovide users [with] mechanisms to communicate with other users.”
This statute addresses the ability of registered sex offenders to access some social networking Web sites. . . . [T]he statute here defines a “commercial social networking Web site” as one that facilitates social introduction between people, and provides users with a means of communicating with each other. As is apparent to any who access them, social networking Web sites provide both a forum for gathering information and a means of communication. . . . [T]he essential purpose of section 14-202.5 is to limit conduct, specifically the ability of registered sex offenders to access certain carefully-defined Web sites. This limitation on conduct only incidentally burdens the ability of registered sex offenders to engage in speech after accessing those Web sites that fall within the statute’s reach. Thus we conclude that section 14-202.5 is a regulation of conduct. [emphasis added]
[We] do not agree with the later assertion that the statute primarily regulates conduct and places only an “incidental” burden on speech. This statute completely bars registered sex offenders from communicating with others through many widely utilized commercial networking sites. Therefore, in [our] view, it primarily targets expressive activity usually protected by the First Amendment.
Well, I’m a free speech absolutist. But, that doesn’t mean that speech is always protected. Along with every other fundamental right, it may be restricted. And I’m going to use a lawyer’s term here, if, but only if, you can show that the restriction promotes a countervailing goal of compelling importance that can’t be promoted in any other way. And that’s a very and appropriately hard burden of proof.