Lead Opinion
OPINION
STATEMENT OF THE CASE
Appellant-Defendant, Michael L. Harris (Harris), appeals his conviction and sentence for Count I, failure to register as a sex offender, a Class D felony, Ind.Code § 11-8-8-17; and Count II, sex offender internet offense, a Class A misdemeanor, I.C. § 35-42 — 4-12.
We affirm in part and reverse in part.
ISSUES
Harris raises three issues on appeal, which we restate as the following four issues:
(1) Whether Harris’s convictions under I.C. § 11-8-8-17 and I.C. § 35-42-4-12 violate the First Amendment of the United States Constitution;
(2) Whether Harris’s conviction under I.C. § 11-8-8-17 violates Harris’s right of free expression under the Indiana Constitution;
(3) Whether I.C. § 11-8-8-8 constitutes an ex post facto law under the Indiana Constitution as applied to Harris; and
(4) Whether the evidence was sufficient to convict Harris of failure to register as a sex offender under I.C. § 11-8-8-17.
FACTS AND PROCEDURAL HISTORY
In 1999, Harris was convicted of Class B felony child molestation and sentenced to ten years’ incarceration. Harris was released to parole and reincarcerated on multiple occasions until his sentence was completed in 2008. Initially, Harris was required to register as a sex offender for ten years commencing December 1, 2008; however, by operation of law, Harris’s sta
Following his release from incarceration, Harris filled out a sex and violent registration offender form provided by the Elkhart County Sheriffs Department. The registration form contained spaces for Harris to provide his “E-mail/Chat room/instant Messaging/Social Networking Site Names” but these were left blank. (State’s Exhibit No. 2 p. 1). The last page of the form contains a preprinted affirmation and series of acknowledgements. The affirmation provided that Harris had truthfully answered the form under penalties of perjury. The acknowledgements included a warning that persons convicted of certain crimes, including child molesting, “may be prohibited from communicating via chat rooms, instant messaging or social networking sites in which persons under the age of 18 are allowed to access or use. Violation is a Class A [mjisdemeanor for the first offense and [Class] D [fjelony for each and every one thereafter.” (State’s Exh. No. 2 p. 3). Harris’s signature appears on the last page of the form and alongside the date of December 2, 2008. On the same page, witness signatures dated December 2, 2008, March 2, 2009 and June 1, 2009 also appear.
Detective Brian Holloman of the Elk-hart County Sheriffs Department (Detective Holloman) began working with the county sex offender registry in May 2006 and has been “[s]olely running it since July of 2006” and oversees the county’s average of 400 sex offenders. (Transcript p. 79). In June 2009, Detective Holloman received information that Harris “had a MySpace profile” and began investigating. (Tr. p. 86). Detective Holloman went to the MySpace website and found Harris’s profile page with a user name of “filmmaker 54.” The profile page contained Harris’s photograph, biographical information, interests, and listed his marital status as single. In response to a subpoena, MySpace, Inc. provided Detective Holloman with account information: the account had been created on May 5, 2009 and was registered in Harris’ name along with an America Online, Inc., (AOL) email address of filmmaker54@aol.com.
A subpoena was thereafter sent to AOL, which provided Detective Holloman with account information for “filmmaker54.” The account information included a list of associated “screen names,” including “Mi-chaHarr5,” “Mlharrismedia,” “Rjharrish-ome,” as well as other screen names, which were apparently also used as email addresses. (State’s Exh. No. 5 p. 5). The account was registered under the name of Harris’s wife and paid for with her credit card. Her address and telephone number were the same as reported by Harris on his sex and violent offender registration form. The membership had been active since “03-01-15.” (State’s Exh. No. 5 p. 7).
On November 9, 2009, the State filed an Information charging Harris with failure to register as a sex offender, a Class D felony, I.C. § 11-8-8-17; and a sex offender internet offense, a Class A misdemean- or, I.C. § 35-42-4-12. On December 3, 2009, Harris provided an updated registration form, which listed the AOL email addresses but no social networking user names. Harris attached a note indicating that he had provided this information under protest and without admitting that he had used or intended to use these email addresses.
On May 26, 2010, Harris filed a petition for relief from retroactive application of I.C. §§ 11-8-8-8; -17; and § 35-42-4-12 alleging primarily as applied ex post facto violations under the Indiana Constitution.
On January 23, 2012, a jury trial was-' held. Harris was found guilty as charged on both Counts. On February 27, 2012, the trial court sentenced Harris to three years’ incarceration at the Department of Correction on Count I with a concurrent one year sentence on Count II.
Harris now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. First Amendment
Harris contends that his convictions under I.C. §§ 11-8-8-17 and 35-42-4-12 violate the First Amendment to the United States Constitution. The First Amendment provides in relevant part that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const., Arndt. 1. The First Amendment is applicable to the states via the- Fourteenth Amendment. Shuger v. State,
Harris makes essentially two arguments that the statutes violate his First Amendment rights.
Both parties characterize the statutes at issue as content neutral. Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech. Ward v. Rock Against Racism,
A. I.C. § U-8-8-8(a)(7)
1. Statute at Issue
Indiana’s Sex Offender Registration Act (INSORA), codified at I.C. ch. 11-8-8, requires persons convicted of a sex or violent offense to register with and report to local law enforcement. I.C. §§ 11-8-8-4; -14; Sex offenders must fulfill a number of obligations, including providing personal information. See I.C. § 11-8-8-8. Harris is a sexually violent predator and therefore must register and provide information under I.C. § 11-8-8-8. See Lemmon v. Harris,
Any electronic mail address, instant messaging username, electronic chat room username, or social networking web site username3 that the sex or violent offender uses or intends to use.
I.C. § ll-8-8-8(a)(7). Failure to register is punishable as a Class C or D felony under I.C. § 11-8-8-17. Failure to. register includes not only a knowing or intentional “material misstatement” but also an omission of information when registering. I.C. § 11 — 8—8—17(a)(3).
Harris describes himself as a political activist who is vehemently opposed to sex offender registry and related laws. He cites newspapers, government websites, online forums and attorney websites as examples of websites requiring an email address as a prerequisite to communicate. He alleges that although, he has spoken out publicly about his concerns; however, “because of his business interests, personal safety concerns for he [sic] an[d] his family and to avoid retaliation, and his tenuous situation as a person required to.register as a sex offender, there are times when it is prudent for [him] to comment or speak anonymously.” (Appellant’s Br. p. 14). By requiring disclosure of his email addresses, Harris argues that I.C. § 11-8-8-8(a)(7) prohibits “true anonymity of speech since [Harris] is required to give the very persons or organizations he may be speaking out against the identifiers he would otherwise be able to use with anonymity (in the public forum[) ].” (Appellant’s Br. p. 14). Harris therefore contends that “it is impossible for [him] to respond anonymously to online newspaper articles and to participate , anonymously in online political forums,” and creates “a substantial burden on his right to speak.” (Reply Br. p. 3).
The State argues that I.C. § 11-8-8-8(a)(7) does not implicate the First Amendment. Specifically, the statute’s. registration requirement does not prohibit Harris from speaking and “places no limits' whatsoever on a registrant’s use of the internet.” (Appellee’s Br. .p. 12). In the State’s view, the registration requirement does not compel Harris to speak, nor does it restrict him from expressing his views. The State also argues that Harris can communicate anonymously by creating a blog to express his views.
In Doe v. Shurtleff,
We first examine whether the statute serves a significant government interest. See Economic Freedom Fund
The narrowly tailored requirement is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. Ward,
Regarding the chilling effect providing identifiers may have on his right to speak anonymously, we observe that disclosure of online identifiers does not “unnecessarily interfere with his First Amendment freedom to speak anonymously.” Shurtleff,
1. Statute at Issue
Sexually violent predators and certain sex or violent offenders are outright banned from using those social networking sites, instant messaging programs, or chat room programs that are accessible by persons under the age of eighteen. I.C. § 35-42-4-12. Harris, by virtue of his status as a sexually violent predator, is subject to the statute’s restrictions. See I.C. § 35-42 — 4—12(b)(1). Those restrictions include the following:
(e) A person described in subsection (b) who knowingly or intentionally uses:
(1) a social networking web site; or
(2) an instant messaging or chat room program;
that the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program commits a sex offender Internet offense, a Class A misdemeanor.
I.C. § 35-42-4-12(e).
Subsections (c) and (d) define instant messaging or chat room programs and social networking web sites. An “instant messaging or chat room program” refers to a software program that “allows two (2) or more members or authorized users to communicate over the Internet in real time using typed text.” I.C. § 35-42-4-12(c). The software program must require registration or creation of “an account, user name or password to become a member or registered user.” I.C. § 35-42-4-12(c). A “social networking web site” is an Internet web site that “facilitates the social introduction between two (2) or more persons;” “allows a member to create a web page or personal profile;” and “provides a member with the opportunity to communicate with another person.” I.C. § 35-42-4-12(d)(( ),(3-4). The social networking web site “requires a person to register or create an account, user name, or a password” in order to “become a member of the web site and to communicate with other members.” I.C. § 35-42-4-12(d)(2). Electronic mail and message board programs do not constitute instant messaging, chat room programs, or social networking web sites. I.C. § 35-42-4-12(c)-(d).
Harris contends that his use of social networking web sites is protected under the First Amendment. By convicting him for using certain social networking web sites, Harris argues that he has been punished for engaging in constitutionally protected expressive activity. The State argues that the internet use restriction is narrowly tailored to serve the compelling interest in protecting minors from online solicitations and that ample alternatives exist for Harris to express his views. The State asserts that the sex offender internet offense statute is narrowly tailored to promote its compelling interest as it “removes predators from online sites where they have easy access to a large pool of potential victims.” (Appellee’s Br. p. 18). However, the State concedes that “the statute will potentially prohibit a considerable amount of speech that does not involve interactions with minors at all.” Nevertheless, the State contends that the statute is narrowly drawn because “there is no other workable effective measure to deter and prevent the online sexual solicitations of minors” and only certain types of sex offenders are restricted from using web sites or services that pose “the greatest risk of online exploitation.” (Appellee’s Br. p. 18).
After Harris filed his appeal, the Seventh Circuit issued its decision in Doe v. Marion County Prosecutor,
all Marion County[, Indiana] residents required to register as sex or violent offenders pursuant to Indiana law who are not subject to any form of supervised release and who have been found to be a sexually violent predator under Indiana law or who have been convicted of one or more of the offenses noted in [I.C] § 35 — 42^:—12(b)(2) and who are not within the statutory exceptions noted in [I.C] § 35^2-4-12(a).
Id. at 696. The lower court decision upheld the constitutionality of the statute, concluding that I.C. § 35-42^4-12 was a content neutral regulation, narrowly tailored to serve a significant governmental interest and left ample alternative channels for communication open.
The Seventh Circuit reversed and remanded with instructions to issue the injunction. Id. at 703. It concluded that I.C. § 35-42-4-12 was a content neutral restriction “because it restricts speech without reference to the expression’s content.” Id. at 698. As a result, it applied the Ward test to determine whether the statute is “narrowly tailored to serve a significant governmental interest” and “leave[s] open ample alternative channels for communication of the information.” Id. (quoting Ward,,
The Doe court first considered the constitutionality of complete bans on expressive activity. Complete bans can be deemed narrowly tailored “but only if each activity within the proscription’s scope is an appropriately targeted evil.” Id. (quoting Frisby v. Schultz,
In contrast, where the state has alternative means to combat the evil, the Doe court noted that such bans have been held invalid. It cited Schneider v. Town of Irvington,
The Doe court concluded that I.C. § 35-42-4-12 was not narrowly tailored in light of these precedents. Under the Frisby
3. Application to Harris
The parties here agree and the Doe court concluded that I.C. § 35-42-4-12 is content neutral. Guided by the Seventh Circuit’s decision in Doe, we therefore apply the Ward test to determine whether I.C. § 35-42-4-12 meets the intermediate level of scrutiny applicable to content neutral regulations. See id. Here, the State has argued that a) it has a substantial state interest in protecting minors from harmful communication; b) I.C. § 35-42-4-12 is narrowly tailored to serve that interest; and c) ample alternatives exist for Harris to express himself.
Aspects of this case illustrate the breadth of the applicable state interest. Although Harris cites to studies disputing the current rates of sex offender recidivism, we cannot say that the State’s assertion that existence of online predation and high sex offender recidivism has lost its force. Further, we cannot ignore that Harris is a sexually violent predator whose conduct in fact posed the very risk to minors that the State seeks to restrict from occurring through the Internet. As a parolee, Harris violated the terms of his parole by soliciting teenage male actors for his movies via the Internet. See.Harris v. State,
[T]he limitation on Harris’s access to the Internet is reasonably related to his successful reintegration into the community. By imposing the restriction on Harris’s use of the Internet, the [parole board] was legitimately concerned that a released child molester’s unfettered access to a computer might result in additional criminal conduct. This is so because the Internet, or Cyberspace, defies boundaries and offers unlimited access to people, including children. See, e.g., U.S. v. Zinn,321 F.3d 1084 , 1093 (11th Cir.2003) (noting that some child molesters reach their victims through the Internet), cert. denied,540 U.S. 839 ,124 S.Ct. 97 ,157 L.Ed.2d 71 [ (2003) ]. This access is often subtle to children — as it comes in the form of friendship or, in Harris’s case, prospective employment — and undetected by parents. Restricting a child molester’s access to this communication medium, therefore, serves to protect the public and to prevent future criminal activity.
Id. at 275. We conclude that under these circumstances the State has sufficiently demonstrated that it has significant interests associated with the regulation of sex offender internet usage.
However, the State’s argument on narrow tailoring, an issue under which it has
Nevertheless, an argument can be made under City of Los Angeles and Hill that the media of social networking sites or instant messaging programs constitute an evil and also present difficulties in carving a rule that covers precisely the evil contemplated by the General Assembly. The Doe opinion acknowledges this as a possible argument:
Despite the infirmity of the statute in this case, we do not foreclose the possibility that keeping certain sex offenders off social networks advances the state’s interest in ways distinct from the existing justifications. For example, perpetrators may take time to seek out minors they will later solicit. This initial step requires time spent on social networking websites before the solicitation occurs. [_Further,] a law could apply to certain persons that present an acute risk — those individuals whose presence on social media impels them to solicit children. Currently, the state presents no evidence that covered individuals present this sort of risk.
Id. at 701-02.
It is conceivable that the social networking medium possesses qualities allowing us to conclude that the substantive evil is generated by the medium itself. See A.B. v. State, 885 N.E.2d 1223, 1224-225 (Ind.2008)(describing features of MySpace). Social networking websites use endorsements from trusted sources to facilitate social introductions thereby overcoming a bias against unknown persons, products, or services. It is possible that prohibiting those certain sex offenders from using such online utilities reduces the risk that unsupervised communication with an unsuspecting minor may, through development of bonds of trust and friendship with a predator — a bond that may ultimately lead to the minor being lured and groomed. Moreover, the nature of social networking web sites may present obstacles justifying the administrability exception under Hill. Yet, without detailed explanations on how social networking web sites operate, the State’s argument is not only insufficient to establish justification under City of Los Angeles and Hill, but
A lower federal court’s interpretation of Indiana law is not binding on an Indiana state court. See League of Women Voters of Indiana, Inc. v. Rokita,
In reaching our determination, we emphasize the distinction between First Amendment overbreadth and ‘as-applied’ challenges. The First Amendment overbreadth doctrine allows an individual to attack the constitutionality of a statute that applies to protected speech, even if the conduct by the challenging party is clearly unprotected. Logan v. State,
II. Free Expression under the Indiana Constitution
We next review Harris’s claim that I.C. § 11-8-8-8 violates the Free Expression clause of the Indiana Constitution. Article 1, Section 9 states in relevant part that “[n]o law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever [...] but for the abuse of that right, every person shall be responsible.”
A. Standard of Review
We apply a two-step inquiry when reviewing the application of a statute under the Indiana Constitution. See Shoultz v. State,
If the expressive activity is political in nature, the State must demonstrate that it did not materially burden the claimant’s opportunity to engage in political expression. Id. “Expressive activity is political ... if its point is to comment on government action, whether applauding an old policy or proposing a new one, or opposing a candidate for office or criticizing the conduct of an official acting under the color of law.” Whittington v. State,
B. Ind.Code § ll-8-8-8(a)(7)
Harris argues that registration of his email address “curtails any anonymity that he may wish to use [... ] thereby imposing a material burden upon his free speech and exchange of ideas.” (Appellant’s Br. p. 15). The State responds that I.C. § ll-8-8-8(a)(7) does not restrict expressive activity and even if it is a restriction, the registration requirement is a response to an abuse of the right to speak.
Although Harris contends that the statute has restricted his political expression, he must show that the “actual operation of the statute at issue” restricted his expression. Price v. State,
Even assuming that Harris has shown the statute to be a restriction on his expressive activity, Harris has not met his burden regarding the second prong, ie., that the State could not reasonably conclude that the restricted expression was an abuse. First, to the extent that Harris argues that the registration requirement restricts his anonymous expression, we have previously noted that the right of anonymity expression applies when anonymity is a catalyst for speech. See Shurtleff,
III. Ex Post Facto Provision of the Indiana Constitution
Harris’s final constitutional challenge is that I.C. § 11-8-8-8 is unconstitutional as applied to him in that the statute is an ex post facto law and therefore violates the Ex Post Facto Clause of the Indiana Constitution.
In Wallace, ' the supreme court concluded that ex post facto claims under the Indiana Constitution are evaluated by application of the “intent-effects” test. Pollard,
Harris’s ex post facto challenge fails. Although Harris alleges that I.C. § 11-8-8-8 constitutes an ex post facto violation in the heading of his brief and the last sentence of his argument, he makes no attempt to analyze the statute under the intents-effects test. As a result, we find that Harris has-failed to make a cogent argument and has therefore waived this .particular claim. See Wingate v. State,
IV. Sufficiency of the Evidence
Harris also argues that because he personally did not use or intend to use certain unregistered email addresses, he complied with the I.C. § ll-8-8-8(a)(7) requirement that a sex or violent offender register those email addresses the offender uses or intends to use. We characterize this argument as a sufficiency of the evidence claim.
In order to convict Harris of failing to register under I.C. § 11-8-8-17; as a. Class D felony, the State was required to prove beyond a reasonable doubt that Harris, a sex offender, acting with the culpability required for commission of the crime:
(1) fail[ed] to register when required to register under this chapter; '
(2) fail[ed] to register in every location where the sex or violent offender is required to register under this chapter;
(3) ma[de] a material misstatement or omission while registering as a sex or violent offender under this chapter[.]
I.C. § ll-8-8-17(a). The statute requires that the sex or violent offender knowingly or intentionally commit the violation for culpability. I.C. § 11-8-8-17.
When reviewing the sufficiency of the evidence to support a conviction, we will consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State,
Harris does not dispute that he did not list the email addresses when he updated his registration on June 1, 2009. However, Harris argues that he was aware of the requirement to register and as a result he never personally used or intended to use the unregistered email addresses or social networking website user names. Instead, he claims that the unregistered email addresses and social networking us-ernames were registered under his wife’s name, used in connection with the promotion of his services as an actor and filmmaker, and part of the “brand name” of his business carried out through his corporation. According to Harris, in such case, the law does not require him to register the email addresses or social networking user names.
At trial, the State offered screen shots of Harris’s MySpace profile page and his IndianaActors.com profile page. The MySpace profile page contained Harris’s photograph, a narrative of his likes and dislikes, listed his marital status as single, and a user name of ‘filmmaker 54.’ Further, the State provided records from MySpace showing that the profile page was created on May 5, 2009, and an associated email address of ‘filmmakerl954@aol.com.’ The Indiana Actors.com profile page contained photographs of Harris, listed an email address of ‘michaharr5@aol.com,’ and stated “[cjontact Michael L. Harris directly if you are interested in his talents.” (State’s Exh. No. 6). Harris did not register either email address until December 3, 2009.
Based on the foregoing, we deem fHarris’s arguments merely a request to reweigh the evidence. We decline to do so. There is sufficient evidence from which the jury could infer that Harris used or intended to use such email addresses and failed to register these email addresses on June 1, 2009. We therefore reject Harris’s sufficiency of the evidence claim.
Based upon the foregoing, we conclude that Harris’s conviction under Ind.Code § 35-42-4-12 violates the First Amendment to the United States Constitution and reverse his conviction under that statute. However, Harris’s constitutional challenges to I.C. § ll-8-8-8(a)(7) under the First Amendment as well as Article 1, Sections 9 and 24 of the Indiana Constitution fail. We also conclude that the State produced sufficient evidence to support Harris’s conviction under I.C. § 11-8-8-17.
Affirmed in part, reversed in part.
Notes
. As a threshold matter, we ascertain the nature of these challenges. As the State points out, Harris's brief contains lengthy argument citing language applicable to both facial and as applied challenges to the constitutionality of the statutes. A facial challenge to the constitutionality of a statute requires the challenging party to demonstrate that there are no set of circumstances under which the statute can be constitutionally applied. See Doe v. Town of Plainfield,
. Although Harris asserts that both I.C. §11-8-8-8 and -17 are the source of the alleged violation, as the State points out, I.C. § 11 — 8— 8-17 merely criminalizes the failure to provide required information; the requirement to provide email addresses and internet identifiers is contained in I.C. § 11 — 8—8—8(a)(7). Thus, the inquiry into the constitutionality of Harris's anonymity claim is better understood as a challenge to I.C. § 1 l-8-8-8(a)(7) only.
. Each of the foregoing terms' is further defined by statute. User names, whether for an electronic chat room, instant messaging, or social networking web site, refer to identifiers enabling either communication over the internet in real time using typed text or the creation, use, or modification of a social networking website. See I.C. §§ 11-8-8-1.2; - 1.6; -1.8. A social networking web site is defined in I.C. § 35-42-4-12. An email address refers to “a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.” I.C. § 11-8-8-1.4.
. The Shurtleff court employed a narrowing construction of the Utah statute to conclude that it precluded "unrestricted dissemination information to the general public.” Shurtleff,
. For the purposes of foregoing analysis, we have assumed that email permits anonymity. Cf. Howell v. State,
. By concluding that I.C. § 35-42-4-12, as applied, violates the First Amendment, we do not reach Harris’s challenges to the statute under the Article 1, Sections 9 and 23 of the Indiana Constitution. Further, our holding obviates the need to review Harris’s argument regarding the statutory defense provided by I.C. § 35-42-4-12(f).
. Harris’s ex post facto challenge is based exclusively on the Indiana Constitution and not the United States Constitution.
. Harris also contends that his convictions violate Resolution from the United Nations Human Rights Council regarding free speech on the Internet. See H.R.C. Res. 20/L.13, U.N. Doc. A/HRC/20/L.13 (June 29, 2012). However, Harris cites to no authority to demonstrate that this resolution has binding authority and further fails to make an argument how the statutes violate the resolution. Accordingly, we deem this argument waived for failure to make a cogent argument. See Wingate,
. Harris makes two additional arguments that we do not consider. First, Harris alleges that the trial court abused its discretion by denying his motion in limine regarding criminal history evidence. It is well settled that the denial of a motion in limine does not preserve error and that the failure to make a timely objection to the evidence at trial waives the error on appellate review. See Warren v. State,
Concurrence Opinion
concurring in part and concurring in result in part.
I agree with the majority that the State produced sufficient evidence to support Harris’s conviction under Indiana Code Section 11-8-8-17; that he waived his ex post facto claim as to Indiana Code Section 11-8-8-8; that he waived his claim that his convictions violate the Resolution from the United Nations Human Rights Council; and that he waived his claims regarding the trial court’s denial of his motion in limine and the prosecutor’s alleged misconduct. I also agree that Indiana Code Section 11-8-8-8 is not unconstitutional as applied to Harris under the First Amendment. As to the remaining issues, I respectfully concur in result.
Harris first contends that Indiana Code Sections 11-8-8-7, 11-8-8-17, and 35-42-4-12 are unconstitutional as applied to him under the First Amendment to the U.S. Constitution and Article 1, Section 9 of the Indiana Constitution. Like the majority, I agree with the State that Indiana Code Section 11-8-8-17 “merely makes it a crime to failure to register as required by law, which does not implicate” any constitutional free-speech provision, and thus his “constitutional arguments are properly directed toward the substance of the registration requirement, which is found in Section 11-8-8-8.” Appellee’s Br. at 9 n. 5. As mentioned above, I agree with the majority that Indiana Code Section 11-8-8-8 is not unconstitutional as applied to Harris under the First Amendment. As for Harris’s state constitutional argument, however, I would simply hold that he has failed to establish that the statute has actually restricted his expression and say nothing more on the subject.
As for Indiana Code Section 35-42-4-12, the majority acknowledges that the Seventh Circuit Court of Appeals recently addressed its constitutionality under the First Amendment in Doe v. Marion County Prosecutor,