Monday, June 13, 2011

NC - What Happens When the General Assembly Passes a Law Without Consulting an “IT Guy” or the Constitution

Original Article


By Glenn Gerding

The North Carolina General Assembly believes it is not enough in the effort to protect children to restrict where registered sex offenders can live and go in their communities. Registered sex offenders, even those no longer on probation, are now banned from using the Internet for most purposes, no matter how innocent. It started with the noblest of intentions, to protect children from offenders who stalk or groom children using the Internet. But what the General Assembly passed in 2008 goes much farther. So far in fact it makes you wonder whether the legislators forgot to consult an IT guy or the Constitution about the practical and legal consequences.

North Carolina General Statute section 14-202.5 became effective Dec. 1, 2008, and reads as follows:

  • § 14-202.5. Ban use of commercial social networking Web sites by sex offenders
    • (a) Offense. – It is unlawful for a sex offender who is registered in accordance with Article 27A of Chapter 14 of the General Statutes to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.
    • (b) For the purposes of this section, a “commercial social networking Web site” is an Internet Web site that meets all of the following requirements:
      1. Is operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site.
      3. Facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.
      5. 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.
      7. 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.
    • A commercial social networking Web site does not include an Internet Web site that either:
      1. Provides only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform; or
      3. Has as its primary purpose the facilitation of commercial transactions involving goods or services between its members or visitors.
    • Jurisdiction. – The offense is committed in the State for purposes of determining jurisdiction, if the transmission that constitutes the offense either originates in the State or is received in the State.
    • Punishment. – A violation of this section is a Class I felony.

Upon a first reading of this section, it might not be apparent just how broad it reaches across the Ethernet. In addition to Internet websites commonly considered to be social networking websites such as and, numerous other websites are also off-limits under section 14-202.5’s definition of commercial social networking websites. Sites such as,,,,,,,,,,, and are all off-limits to registered sex offenders.

Take, for example, The website offers countless recipes and food preparation suggestions. The website offers cooking tips and special offers from Betty Crocker. But the website also derives revenue from advertising on the website and other sources related to the website. The website allows a user to create a “user profile” that includes personal information such as his name and photograph. The website has numerous message boards and “[f]acilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.”

In the case of, the information exchanges tend to be about casseroles and Crockpot recipes. Regardless, because the website fits squarely within the definition of a commercial social networking website, it would be off limits to a registered sex offender.

A significant example of a prohibited site is At first glance you might conclude that because the homepage for Google does not require a login to use the search engine, and the homepage itself does not fit within the parameters of section 14-202.5, the statute does not prohibit accessing Google for its search features. But the statute is not so narrowly tailored. It does not prohibit viewing certain types of sub-webpages of a website. To the contrary, the statute makes it illegal to “access” a commercial social networking website. is a commercial social networking website by section 14-202.5. It derives revenue from advertising such as Google Ad Words. It allows users to create personal profiles including their names and other identifying information. It allows users to create e-mail, communicate in chat rooms, and post information on message boards. It facilitates the social introduction of two or more people.

Although such functions might be sub-pages of the main website, the statute prohibits access to any site if it fits the definition of commercial social networking website. A registered sex offender would therefore be unable to use Google’s e-mail system, maps, search engine, or numerous other functions.

A final example is Amazon receives revenue from its website. It allows users to create personal profiles with personal information and post comments on message boards. It facilitates the exchange of information between two or more people. Initially you might think Amazon would be exempt under section (c)(2) which exempts certain types of commercial websites. But a close reading of section (c)(2) shows that only those websites are exempt that facilitate commercial transactions between members or visitors. Amazon’s primary purpose is to facilitate commercial transactions between Amazon and its visitors, not between users of the websites and other users.

Section 14-202.5 limits access to websites, but does not restrict its reach to the use of desktop or laptop computers. Therefore cell phones that can access the Internet would be forbidden. Take for example the Motorola Droid cell phone. The Droid runs on the Google Android operating system. If a phone user has a data plan, his phone accesses the Internet, including Google’s Internet servers, whenever his phone is turned on. The user’s Droid can access Facebook to download the user’s contacts’ Facebook pictures and “status.” The phone can also provide access to Google’s maps and driving directions, just as a stand-alone Global Positioning System (GPS). Does a registered sex offender risk prosecution under section 14-202.5 if he uses his Droid to get directions to his local sheriff’s office in order to register?

As you can see, the General Assembly failed to consider the practical problems associated with defining a “commercial social networking website.” Practical problems aside, the statute raises significant constitutional concerns. At the top of the list are that the statute is overbroad and vague. The statute here is overbroad because it lacks an intent element and sweeps within its regulation otherwise constitutionally protected conduct.

Section 14-202.5 does not require the State to prove any nefarious intent. There is no requirement that the State show a defendant accessed the social networking website intending to stalk or groom a child, or to arrange a meeting with a child for sexual activity. Instead, the State only has to prove access. It doesn’t matter that the registered sex offender used Facebook or G-mail to communicate with his mother about holiday plans. He’s still guilty of a Class I felony.

In a similar overbreadth challenge, the North Carolina Court of Appeals recently held Winston-Salem City Ordinance §38-29 (b), which prohibited loitering for the purpose of drug-related activity, unconstitutionally overbroad and vague. State v. Mello, 684 S.E.2d 477 (N.C. Ct. App. 2009). The ordinance made it unlawful for “any person to remain or wander about in a public place under circumstances manifesting the purpose to engage in a violation of the North Carolina Controlled Substances Act.” The ordinance listed seven examples of the “circumstances” purporting to “manifest the purpose” of engaging in drug activity.

In holding the ordinance unconstitutionally overbroad, the court pointed out the ordinance’s failure to require proof of intent to violate a drug law. The court found language imposing liability for conduct “manifesting” such a purpose was not sufficient. It distinguished State v. Evans, 73 N.C. App. 214 (1985), which upheld the constitutionality of a statute prohibiting loitering for the purpose of engaging in a prostitution offense, because the loitering for prostitution statute included an element of criminal intent.

In Evans, the court had “reasoned that, although some of the acts encompassed in the loitering statute were constitutionally permissible (i.e., repeatedly attempting to engage passersby in conversation, repeatedly stopping vehicles), the statute ‘required proof of specific criminal intent, the missing element in unconstitutional ‘status’ offenses such as simple loitering.’ “ Mello, 684 S.E.2d at 480. In Mello the court stated that “[b]ecause the [Winston-Salem] Ordinance fails to require proof of intent, it attempts to curb drug activity by criminalizing constitutionally permissible conduct.” Mello, 684 S.E.2d at 480-81.

Section 14-202.5 is the modern Internet version of an anti-loitering statute. It forbids a registered sex offender from simply “being” in certain cyber places (social networking websites) without requiring proof of any specific criminal intent that he was there for the purpose of communicating with or committing an offense against a minor. As the Court of Appeals stated in Evans, “[m]ere presence in a public place cannot constitute a crime.” Evans, 73 N.C. App. at 217, 326 S.E.2d at 306. Likewise, mere presence in a public chat room or online on a social networking website cannot constitute a crime.

Like the ordinance in Mello, section 14-202.5 includes no requirement of criminal intent or purpose. In an attempt to prevent communications between a sex offender and minor and to prevent a sex offender from finding a victim, the statute criminalizes constitutionally permissible conduct. Section 14-202.5 “deters a substantial amount of constitutionally protected conduct” (such as free speech and the right of assembly)while purporting to criminalize unprotected activities.” State v. Mello, 684 S.E.2d 477, 479-80 (2009).

Section 14-202.5 is also unconstitutionally overbroad because it sweeps within its purview registered sex offenders’ rights to freedom of speech, press, association, religion, and to petition the government for redress of grievances guaranteed by the First and Fourteenth Amendments to the United States Constitution and Sections 12, 13, 14, and 19 of Article I of the North Carolina Constitution.

Section 14-202.5 restricts an individual’s ability to communicate with others, which is without a doubt a violation of the First Amendment’s prohibition of laws which abridge the freedom of speech. Under section 14-202.5 a registered sex offender would not be able to use the e-mail functions of G-Mail, Yahoo! mail, Hotmail, Facebook, or MySpace. A registered sex offender would not be able to use the “instant messaging” functions of,, or He also could not use the chat rooms or discussion forums of those sites to communicate. Although section 14-202.5 indicates an Internet service that provides only one discrete communications service would not be considered a “social networking website,” the websites listed above do not provide only one service. They provide multiple services.

First Amendment expressive freedoms have also been held by the United States Supreme Court to include the rights to stroll, wander, loaf, and loiter, with or without any purpose. Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972). Here, the use of social Internet websites for the purpose of “web surfing,” “Googling,” “killing time,” researching, looking up a recipe, catching up with an old friend from high school, or just following one’s interests online are the modern equivalent of strolling, wandering, loafing, and loitering. Doing so without any criminal intent or purpose is a protected First
Amendment expressive freedom which is swept within the prohibitions of section 14-202.5.

Freedom of association is a fundamental right, implicit in the concept of ordered liberty.” Treants Enterprises, 94 N.C. App. at 458 (quoting Thomas S. By Brooks v. Flaherty, 699 F. Supp. 1178, 1203 (W.D.N.C. 1988)). Section 14-202.5 prohibits a registered sex offender from associating with anyone on a social networking website. That could include sharing a recipe on, exchanging information about heart disease on, or speculating about the University of North Carolina Tar Heels sports teams.

The right to the free exercise of one’s religion is also a fundamental right which is substantially burdened by section 14-202.5. Section 14-202.5 effectively prohibits engaging in religious conduct on numerous websites, including sites such as and A registered sex offender could not view inspirational videos, submit a prayer request, read a devotional, or learn about the Bible on those websites and many others. He could not post on the websites statements of his faith or comment on the faith statements of other believers.

To limit First Amendment protected conduct, a state must demonstrate a “compelling state interest.” N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958); Treants Enterprises, 94 N.C. App. at 459. The state must also employ “means closely drawn to avoid unnecessary abridgment of associational freedoms” in achieving its objectives.” Buckley v. Valeo, 424 U.S. 1 (1976); Treants Enterprises, 94 N.C. App. at 459.

Even though the State has a compelling interest in protecting minors from sexual abuse, section 14-202.5 is not narrowly tailored to avoid unnecessary abridgement of registered sex offenders’ speech, religious, and associational freedoms. To the contrary, the statute applies to all registered sex offenders, regardless of the sex offense they committed and regardless of whether the victim of their offense was a minor or adult. The statute applies to all registered sex offenders, regardless of whether a computer was used to facilitate their crimes. The statute makes no provision for a judicial or even administrative determination of whether a registered sex offender is dangerous, likely to stalk and groom children on the Internet, or is likely to be a recidivist.

Forced Exile
This law does not affect just a few individuals for a few years. According to the North Carolina State Sex Offender Registry, there are over 14,000 registered sex offenders in North Carolina, not including those currently incarcerated. Section 14-202.5 applies to registered sex offenders regardless of whether they are on probation. And now that some sex offenders are required to register for 30 years or even life, they are effectively banished from engaging innocently in the rich and varied communities that make up the Internet.

As you can see, section 14-202.5 is likely unenforceable because of practical and constitutional problems. The issues described above are just a preview of challenges to come. But until a court rules otherwise, registered sex offenders cannot worship online, chat with their mothers, communicate with the Governor or legislators on Facebook, write an online newspaper, earn an online degree from the University of North Carolina, learn about heart disease, find a recipe for chili, or even check the weather without facing a felony conviction. Certainly that’s not what the General Assembly intended. But that’s what they created. Maybe next time our legislature tries to regulate Internet conduct, they should consult an IT guy and the Constitution.

Glenn Gerding is a partner in the Law Office of Glenn Gerding, in Chapel Hill, and defends clients at trial and on appeal in criminal cases. Prior to starting his own firm, Glenn served as an assistant public defender with the Office of the Public Defender in Orange County. Glenn also served on active duty in the U.S. Navy JAG Corps for six years as a criminal defense attorney at the trial and appellate levels. He still serves in the Navy Reserve as an appellate judge on the Navy-Marine Corps Court of Criminal Appeals and holds the rank of Commander.

KOREA - Rapist’s anklet fails to prevent repeat offenses

Original Article

Like we've said many times, GPS is a waste of money and will not prevent any crime from someone intent on committing a crime.


By Shim Sae-rom, Kim Hee-jin

Flaw in the system was that the offender was in his allowed zone

A convicted sex offender who was cuffed with an electronic monitoring anklet allegedly committed more sexual assaults, Gangnam police said yesterday, raising doubts on the effectiveness of the security devices.

Police said the offender, identified by the surname [name withheld], had been sentenced to five years in prison in 2005 for rape and was released in October 2010. Since then, he has been on probation and has been wearing the monitoring anklet.

According to police, after he was released, [name withheld] lived in a two-room apartment arranged by a religious group, where his wife and five homeless people were already living.

In his new home, police said, [name withheld] sexually assaulted a 10-year-old girl, and raped a 47-year-old homeless woman three times in February and March. He also sexually assaulted the woman’s 21-year-old son, who reported him to the police Tuesday. Police arrested [name withheld] Tuesday.

We were worried that [name withheld] would commit additional sex crimes, so we issued an emergent arrest warrant, which is an exceptional case,” a police official said. “[name withheld] was detained until an official arrest warrant was issued [by a court] two days later.

Police said there was no way to detect [name withheld]’s alleged sexual assaults, because they were done within his permitted radius of movement.

The electronic ankle alerts police when the criminal removes it out or moves outside the permitted zone,” a police official said. “If a sex criminal commits a crime within the zone, we can’t block him from doing it,”

The monitoring anklet was adopted in 2008 but a string of sex crimes have occurred by ex-cons wearing them.

On May 24, a 38-year-old sex offender identified as [name withheld] was arrested on a charge of sexually assaulting a 22-year-old female student sleeping on a bus. [name withheld] was wearing his anklet at the time, police said. In April, police in Jeonju, South Jeolla, arrested a sex offender in his 40s who removed the anklet and tried to flee.

In an effort to decrease the number of sex crimes and pinpoint the location of wearers, the Ministry of Justice in 2008 started cuffing sex offenders who received two or more jail terms for sex crimes; people who repeated a sexual offense within five years after their release; and people convicted of sexual crimes against a minor under the age of 13.

Hannity - Mark Foley (Predator?) Breaks His Silence, but why?

Video Link | (Original Article: Part 1 | Part 2)

So apparently Mark doesn't know when to shut up. Now I think, if the FBI actually sees this, Mark may have incriminated himself, if they will actually do anything about it, which I doubt. Just like many people busted by the vigilante group Perverted-Injustice, he did the same thing, and yet he walks while the others are in prison. Why is that? Apparently we have two sets of laws! Congressman Mark Foley pushed hard for sex offender laws, and now when he does the same thing, he thinks he should not be arrested and put in jail? He also said before that he doesn't believe "these people" can get help, yet he's one of them, and now, magically, therapy works? Spoken like a true hypocrite!


By Sean Hannity

SEAN HANNITY, HOST: In September of 2006, Florida republican Congressman Mark Foley abruptly resigned after he was accused of sending sexually explicit internet messages to a former teenage male congressional page.

Now, within days of the scandal breaking, multiple male pages said that they received similar messages from Foley, one even claimed that he had sex with the former congressman. After submitting his resignation, Foley checked himself into a rehab facility for alcoholism, among other issues.

Now, this all happened just several weeks before the midterm elections that November. Now, five years later, he's here in studio.

Former Florida Congressman Mark Foley. Congressman, can I still call you congressman?

FORMER REP. MARK FOLEY, R-FLA.: Always do. Thank you, Sean.

HANNITY: All right. Good to see you.

FOLEY: Thanks.

HANNITY: You have not done a national interview.

FOLEY: I'm not. And I didn't plan it for this week. We organized this prior to what.

HANNITY: We did but, you know, maybe it is -- you know, maybe there might be some insight you have that other people don't have. You know, I'm going to be honest. Because I interviewed you, you were a regular on our show for years.

FOLEY: Yes, sir.

HANNITY: I interviewed you on radio. And I remember at the time how shocked I was. Like a lot of people. And preparing for this interview, you know, when I went back and I'm reading this, you know, these exchanges with somebody you know is underage. And it is so explicit. It is a kid talking about lacrosse and his mom and soccer. And I don't understand this.

FOLEY: I wouldn't expect you to. It was horrific behavior, Sean. It was wrong. I was wrong. But that's all I can do. Apologize and pray.

And continue to work on the recovery. It is regrettable. I embarrassed my family, the staff, my constituents and the House of Representatives that I loved. I loved my job. I loved governing and being a part of the process. And I threw it all away. I have no one else to blame, but myself.
- Why is it that a hypocritical congressman can seek recovery and move on with their lives, yet the average citizen cannot?

HANNITY: You did say you are mad at yourself. And you will punish yourself for the rest of your life. Do you punish yourself every day?

FOLEY: Absolutely.


FOLEY: Just by reflecting. You know, any time there's a scandal, it brings back the horrific pain that I caused people that I love. And there is no excuse for it. So, as we go through this journey of life, we just have to, you know, pray every day that we are going to be a better human being. That we learn from these tragedies and these mistakes. And then go forward.
- Easy to say when you are rich, a congressman, and not serving prison time for your deeds!

HANNITY: As I'm reading about this, have you ever re-read it?

FOLEY: Yes, sir.

HANNITY: You did? Recently, do you re-read it every once in a while?

FOLEY: No, because I've learned that, you know, I understand the pain I've caused. And I can't sit here and continue to torture myself.

HANNITY: What is -- maybe you can bring some insight to this. What is going through your mind? You know this is a young boy. It's a boy, it's a child, and you were a congressman, you were the chairman of the Missing and Exploited Children's Caucus.

FOLEY: Yes, sir.

HANNITY: You know, I've found some comments that you would made. And, you know, we're not going to allow them to voluntarily show up, et cetera, et cetera. We are going to track them like the animals they are. Were you an animal?
- And yet Mark is an online predator, based on the definition, and yet he still is free while others, who did less than he did, are in prison.  That's the injustice system for you!

FOLEY: No, sir.

HANNITY: What is the difference?
- He's a congressman, and others are not, that's the difference. Therapy works for the rich and famous, but not the rest of us.

FOLEY: Well, you learn again in therapy, some of your challenges. You know, I saw the computer screen, almost like a confessional in our church where you are spewing things out. And not really thinking of the consequences. But that's not a good enough excuse. At the end of the day, I'm at the board. And I'm the adult. I'm the responsible party. But I learned from that. And hopefully, the example, maybe that I set, maybe people will learn.
- Will learn what?  That the rich and famous can walk a way scott free?

HANNITY: You claimed later and you went into rehab. Was it just for alcoholism? You claimed you were drunk at the time that all this thing happened?

FOLEY: No, it emanated from the sexual abuse that I received from a priest. I was 11-years-old.

HANNITY: Did you ever name the priest because your --

FOLEY: Yes, sir. Oh yes, the priest actually went on national TV and admitted it.

HANNITY: So, you believe that that changed you? Altered you?

FOLEY: Well, when you are 11-year-old and your first sexual encounter is with a priest. When you grew up in the Catholic faith and you were taught the lessons of the, you know, 10 Commandments, do not lie. And the priest tells you first that this is good. Secondly, he suggests, keep it between us. And if you tell anybody, I will kill myself. That's a fairly horrific burden for an 11-year-old.

HANNITY: Is that why you were a closet alcoholic?

FOLEY: Well, I think it adds to the secrecy of life. I didn't tell my family. I didn't tell anybody that this had happened to me. I didn't even go to the self-help book section. Because I was afraid of my political friends, I didn't want anybody to see me reaching for something that could give me some understanding of the trauma that I had suffered as a child.

HANNITY: Listen. I will concede, that I think, it has been fairly well documented, those that have been abused, often become abusers. Now, as you see this through the prism of five years, or the distance five years later, you were, did you ever have physical contact?
- This is not true.  Some who are abused, do become abusers, if they do not get therapy.

FOLEY: No, absolutely not.

HANNITY: There's a one case that they claimed you had? Is that true?

FOLEY: Never, a physical contact. OK. All of those allegations were disputed. Nothing happen to pages in Congress. Doesn't make it better.
- It doesn't matter, a crime is a crime, and many of those busted by the vigilante group Perverted-Injustice, had no contact as well, and yet they are in prison (some of them) and you walk free!

HANNITY: But you are the adult, it's just like the priest was the adult. In that sense, do you think you became what you hated? Do you think you became.

FOLEY: I think to a large degree, you become, you know, a mirror image of something that may have happened. And that is not a good enough excuse. I'm not trying to say my incident with the priest led me to do what I've done. Because again, I should have, knowing what happened to me, sought some kind of counseling to understand the dynamics at play. Since then, of course, I've read every book about imaginable about what are the consequences of abuse at that age.

HANNITY: Do you still have this thought process? I mean, you recently spoke to the young Republicans at Palm Beach. Do you still have that though process that you had at the time?


HANNITY: Was it only when were you drinking?

FOLEY: It happened late at night. It happened late at night. And it was again, you can't blame the alcohol. Because you still have to -- I mean, a lot of people drink and they don't do stupid things.
- You see folks, he's admitting what he did, over and over, but will the FBI do anything about it?

HANNITY: What about, what is, you know, you say you think about this every day. Not a day goes by you don't think about it?

FOLEY: Well, you think about what you have done to your parents. You think about what you've done to the people involved in your life. You think about the people on the other end of the conversation. So, if you are a responsible person, you just don't walk away and say, OK, I'm better, everything is good.

HANNITY: What are the other regrets? You let people down. It had a big impact that election year, at least I believe so. Disrespected your office, you know.

FOLEY: Well, the big regrets are things like the notion that was planned within the press. That Speaker Hastert and others covered my behavior.

HANNITY: Hastert never knew.

FOLEY: Listen, Denny Hastert was a coach like my father, a high school coach. If Denny Hastert was aware of these e-mails and had come across any information about these e-mails.

HANNITY: He told me in a radio that he did not know.

FOLEY: Sean, I wouldn't be going to an ethics committee. Denny Hastert would have punched me in the nose.

HANNITY: What about Rahm Emanuel would now found out that he know, that they had these a year earlier and they held it for just before the election?

FOLEY: The person who ran against me, Tim Mahoney went to a law firm, reputable firm and told them he had e-mails six months prior to the election.

HANNITY: It's pretty sleazy of Rahm Emanuel. Because I don't want to talk about this because this is a double standard, at the time Nancy Pelosi made comments, and she said at the time, they were protecting Mark Foley, instead of protecting the children.
- Speaking of double standards, so is the fact that Mark is walking free while others who did less, are in prison, but Sean doesn't mention that.

FOLEY: Absolutely not. See, that is what infuriates me. John Shimkus, Speaker Hastert, John Boehner, these are not people that would cover if they knew.

HANNITY: They didn't know.

FOLEY: No, they.

HANNITY: But Rahm Emanuel knew?

FOLEY: I believe strongly, and I think people have said, who provided the e-mails to the DNC, that he had them. He was asked on "Good Morning America" or one of the shows.

HANNITY: No. George Stephanopoulos and he parsed his words, I did not see them. Were you aware of them? I did not see them. Were you aware of them? He played this game.

And then Nancy Pelosi went on to say they are so out of touch with the American people they did not know it was wrong to ignore the behavior of one of their members, a member of Congress who should be held to a higher standard.

They thought it was okay to cover-up. So you make the judgment. She said that about you. Now we've gone through this week with Anthony Weiner.

What do you have to say to Nancy Pelosi?

FOLEY: Nancy Pelosi has to say whatever she wants.

HANNITY: All right, we're going to come back. We'll get your thoughts on Anthony Weiner.

Coming up, much more of my exclusive interview with former Florida Congressman Mark Foley and much more on "Hannity" straight ahead.


HANNITY: We continue with former Florida Congressman Mark Foley. All right, so all those stuff. We have a ton of scandals. We've got McGreevey. We've got Spitzer. We've got Arnold Schwarzenegger. We've got Senator Vitter. We've got Senator Ensign.

We've got -- you know, you were in a sense early in this. Now Anthony Weiner is involved in this whole thing, sending pornographic material to strangers on the Internet. What are your thoughts on what he's going through right now and should he resign?

FOLEY: Well, I know what he's going through from the feeling of remorse because there's no question you feel terrible.

HANNITY: Is he feeling that because he got caught or is he feeling that because he feels bad about his behavior?

FOLEY: Impossible for me to analyze him. All I know is what I did when I looked in the mirror and was confronted with the charges. I first considered my family, community, my staff and the Congress that I loved.

Those were my defining moments of the decision I had to make.

Resignation was the only option, but I'm not suggesting had I waited 24 hours the leadership would have given me a pass. In my heart, I said, you know, there are consequences for your actions. You can't say, let me have a time-out. Let me apologize to everybody.

I had to step out of the process. I had to get help and I did. And I've recovered from that help, but while I was in the cauldron, I would never have fixed my life. I would never have fixed what was fundamentally wrong with me.
- Yes, you get help, and magically it works, yet others go to prison, get help, and are punished for life and can never live it down, so why should you be any different?

HANNITY: Maybe to give some insight because -- again, I don't understand it. You know, because you are a congressman sending out e-mails to kids. At some point, didn't it race through your mind?

At one point in the e-mail, when you're getting very explicit with a 16-year-old kid, he says oh my mom is coming in. You know, didn't you ever fear getting caught? Did you ever think this kid may -- this might get out?

FOLEY: I think if you had a fear, you wouldn't do it.
- Once again, he admits it.  He had sexually explicit chats with underage kids, yet he walks free!

HANNITY: You didn't have that fear?

FOLEY: I don't want to diminish it. I think there's always a fear, but you are not in control of your behavior. You should be, but I'm saying, you are at a different place, inexplicable, maybe. But at the end of the day, I'm at the keyboard. I can't say it is someone else. It's not the person behind me.

HANNITY: I hear you taking responsibility. Is it the culture? You get in this atmosphere, people calling you congressman. They're looking up to you. They want your autograph. I don't know.

Is it -- you know, there's an impulse control issue that I see with Weiner. It seem like -- you know, it is so reckless that he's sending e- mails and explicit pictures and messages to people he doesn't even know.

FOLEY: I think it is a number of things. I think all day you are agitated. People so congressman you are the greatest thing we have in our community. Maybe there's a lacking there. Maybe it is an ego. Maybe it is an immaturity with this new technology.

I mean, I know in my heart I would never say those things if somebody is in front of me. The technology as I mentioned -- right, you are between a screen and you're -- like I said the confessional.

When you say things in your confessional, you blurt them out the priest on the other side of it says three Hail Marys, two Our Fathers.

Then you walk away, absolved or at least you feel absolved of those guilt.

The computer to a degree that same methodology and so I know in my heart I wouldn't have said these things. Anthony probably wouldn't either and that's the uniqueness of why this internet is trapping and capturing so many people.

HANNITY: How do you compartmentalize though being on this committee for exploited children and knowing you are doing this with an underaged kid, I mean, there's a disconnect.

I remember Jennifer Aniston once said about Brad Pitt is like a missing chip. I'm not playing psycho analyst, but it seems a missing connection here, you know.

FOLEY: Well, I think, you know, in your own mind you are trying to protect people. Having had something happened to you. You are using this platform, if you will to make certain similar 11, 12, 13-year-old kids don't get put upon and yes, there's a disconnect.

HANNITY: But then you are putting upon them.

FOLEY: Absolutely and that's what I'm saying that's the disconnect and that's where, you know, stepping back having to take the full responsibility for my actions. I hope I have achieved that. You know, I didn't sit there and try to run the clock out. I said, this was wrong and I resigned.

HANNITY: Do you think, as you looked at the election results that night, it was five weeks before the election that all this happened with you. Did you blame yourself? Did you feel you had a big part? That became the defining issue in that campaign, late in the campaign.

FOLEY: No question, it was a tipping point. I mean, we were 33 seats down in February. We had a lot of issues on our plate, Iraq and other things. I gave the momentum to that decline.

For that I regret it. I regretted hurting people. I regretted hearing people accuse a good man like Speaker Hastert of trying to cover for me. Those were horrific charges against kind people.

HANNITY: Do you ever think about the office? Do you disrespect the office because, you know, you're elected as a public servant and that went through your mind?

FOLEY: No question. I mean, you are 24/7. When people say it was off-duty. I was off hours. No, you are a United States congressman. I asked for the job, nobody forced me into it. That's again the disconnect.

The regrettable disconnect is that people back home counted on me.

I know this week we are sitting here talking about Anthony Weiner and all kinds of things. Somebody out there in America is working their third job today. They won't get to see this show because they are trying to pay their mortgage.

The nation is spending time. More get killed in Afghanistan, about our travails and our stupid behavior. That's what kills me. Or they attack somebody like Paul Ryan who is doing his best this generation to fix Medicare and Social Security. They attack him and claim he's evil and horrible.

HANNITY: The president himself is lying about it. What advice -- if you could tell Anthony Weiner if he were sitting next to you right now and said, can you give me advice on what I should do? Where should I go? What would you tell him?

FOLEY: I don't think I have the qualifications to give him advice.

HANNITY: You probably have -- having been through this, you probably do have the qualifications to at least give him your insight.

FOLEY: In my heart, you cannot fix this from inside that building.

HANNITY: He needs to go.

FOLEY: You cannot fix your problem. Whatever it is that is troubling him, beautiful wife. You know, wonderful family, a great constituency.

Obviously wasn't enough for either one of us. He's not going to get better going back into the building and hope people give him a pass.

HANNITY: What about you still obviously, Republican?

FOLEY: Yes, sir.

HANNITY: Conservative in a lot of ways.

FOLEY: I'm a libertarian.

HANNITY: More libertarian, but you align with the Republicans?


HANNITY: And identify more with them, but they have a lot of different positions, definition of marriage, et cetera, et cetera. How do you reconcile that?

FOLEY: Without a problem. I believe every individual has a right to have various positions on issues. We are not monolithic. I know the party has issues and challenges, but when you look at the economic picture that our party presents, that's why I'm a strong Republican.

HANNITY: There was a call that maybe you would run for mayor of Palm Beach.

FOLEY: Right, Westboro.

HANNITY: Apparently you thought about it, at the time. Will you, have you thought about it? Are you open to seeking elected office again?

Do you think the public will forgive you? Do you think your constituents would?

FOLEY: Well, from what I've gathered from the early poll results, if you will, if I was going to run for mayor, there was a fairly strong indication that I would have been successful.

That doesn't mean I need to inject myself back into the political system. I'm doing a lot of charitable work. I've got a radio show. I've just come off the board of a bank. I'm back into businesses that I love.

I was an entrepreneur before I went to Congress.

HANNITY: Do you think somebody who sends e-mails and has instant messages with children like you did, should that be a crime, should people go to jail for that? Because, you know, one of the things you said you had to deal with is your exploitation. If somebody talks the way you spoke to these kids, should they go to jail?

- Of course he's going to say this, when he's faced with it.  But I'm sure if he was not in this position, he would be saying yes!

HANNITY: Should they be arrested?


HANNITY: How do people trust people that talk like that with kids, how do they trust them around kids?

FOLEY: Well, I think, again, it goes to behavior.

HANNITY: You can write anything you want to a kid on the internet?

FOLEY: No, again, Sean and I'm not going to sit here and try and excuse my behavior. But should I have gone to jail? No, absolutely not.
- Why not?  Others have, and I'm sure in your past, you would have said yes, so why not Mark?

HANNITY: Mark Foley, thanks for being with us. Appreciate it.