Supreme Court To Determine Fate Of Sex Offenders On Social Media
November 3, 2016 (Fault Lines) — Lester Packingham thanked God for beating a traffic ticket on Facebook. His expression of gratitude was returned with a felony charge, since Packingham is on a sex offender registry and a North Carolina law prevents anyone on their sex offender registry from accessing “commercial social networking web sites.”
Now the most dangerous branch of our government is set to tackle whether this law violates Packingham’s First Amendment rights. The Supreme Court’s holding in Packingham v. North Carolina is worth watching, as its effects will determine whether our government further tightens restrictions on speech, or if the First Amendment is still valued in our nation.
Back in 2001, a 21-year-old Lester Packingham pled to “taking indecent liberties” with a minor. Since this is a sexual offense in North Carolina, Packingham went on the sex offender registry after serving approximately a year in jail. In 2007, North Carolina’s legislature decided it was a bad idea to let people on the sex offender registry access social media. They enacted N.C.G.S. § 14-202.5, which made it unlawful for
a sex offender who is registered…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.
This sounds like a good idea in theory. There are bad people out there who want to use Facebook and Twitter to stalk children or potentially “groom them” for sexual assault. The problem with the law as worded is it doesn’t just cover “social media” as one would normally consider it. The Petition for Certiorari spells out how the New York Times’ website, Google, and Amazon are all suspect, since they technically meet all the definitions of a “commercial social networking site.”
Packingham’s case is before the U.S. Supreme Court because North Carolina’s Supremes held it passed “intermediate scrutiny.” Since Packingham wasn’t arrested for expression of joy to the deity of his choosing, the State’s burden was proving this law “served an important government objective” and was “substantially related to achieving that objective.” The North Carolina Supremes held the law met those hurdles, since the offending expression was “content-neutral” and the statute concerned his conduct, not speech.
It’s not as if Lester Packingham couldn’t find other ways to express himself, according to the North Carolina Supreme Court. He could exchange recipes on Paula Deen’s website, or apply for jobs on Glass Door. If Packingham so chose, he could even post images to Shutterstock, since none of those alleged “ample alternatives” allowed contact with individuals who were under eighteen years of age.
Unfortunately, this created a split with other circuits, as indicated in an amicus curae brief filed by Fault Lines’ phone-a-friend, Eugene Volokh. Now the United States Supreme Court has a chance to determine what constitutes “ample alternatives” for registered sex offenders to express themselves, or possibly even strike the law as unconstitutional.
Packingham v. North Carolina is a chance for the United States Supreme Court to issue a definitive ruling on the rights of those who already have so much taken from them, no matter the circumstances behind the conviction. The ruling could serve as a clarification of what “ample alternatives” exist for those barred from social media.
Don’t get your hopes up that Packingham will give us a bright-line test or clear ruling on whether North Carolina’s law violates the First Amendment. Instead, expect a balancing test of some sort, with deference to state legislators who enact laws “for the good of the children” that land those very same children in jail. Even though we value free speech and freedom of expression, the high court will most likely complicate the issue further in a sincere attempt to keep children safe from sexual predators. Worse yet, with no confirmation of a ninth justice in sight, the possibility of a 4-4 split could leave North Carolina’s law constitutional and the nation at a loss as to what “ample alternatives” exist for those we deem among society’s most heinous offenders.
Unfortunately, it’s hard to see the court take a strong position on the side of free speech in a case of this nature involving a dreaded “sex offender” and “risks” any interaction over social media might pose. It’s just too risky, and too controversial, in a time where the court is under constant critique and scrutiny for every decision that doesn’t fit the public’s whim to do anything other than play it safe.
Eight unelected lawyers will soon determine what is best for our nation’s children when it comes to their interactions with strangers on social media. North Carolina’s legislature and courts already promoted their value of protecting children through irresponsible and poorly drafted laws over free speech. Let’s hope the highest court in our land doesn’t follow suit.