Mimesis Law
25 April 2019

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.

8 Comments on this post.

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  • Jim Tyre
    3 November 2016 at 1:15 pm - Reply

    Hey Chris,

    No idea if you, mean-ass editor or someone else wrote the headline, but it was so disappointing. I really liked the notion of SCOTUS using social media to decide a case. ‘-)

    • CLS
      3 November 2016 at 1:32 pm - Reply

      I take full blame for the headline.

      And while amusing, I doubt the High Court will take to the Twitters anytime soon when deciding cases.

      • shg
        3 November 2016 at 1:53 pm - Reply

        I liked the misdirection. Accurate, yet so very wrong. Ignore the old man behind the curtain. The other old man.

  • Will
    3 November 2016 at 4:49 pm - Reply

    IF SCOTUS does the RIGHT THING, they’ll tailor the law to only forbid child sexual predators from interacting with minors on Facebook.

    What I don’t understand is why this matters. As I understand it Facebook won’t even allow a sex offender to have an account whether the state permits it or not. Their policy, as I understand it, is no sex offenders allowed. Period.

    However, if the SCOTUS rules that banning sex offenders from social media is unconstitutional, would that give offenders grounds to sue Facebook for discriminating against them and denying them their freedom of expression? Facebook is so pervasive in today’s world of electronic communication. It’s a way family members and friends separated by great distance stay in touch.

    • Greg Prickett
      4 November 2016 at 12:07 pm - Reply

      Will, it matters because of who is punishing free speech. Facebook is a private entity and can prohibit anyone they want from posting. North Carolina is doing it by governmental action.

      If SCOTUS rules that the law is unconstitutional, it does not create a cause of action for a sex offender to sue Facebook. It just means that North Carolina cannot charge him with a crime for being on social media.

      • Will
        4 November 2016 at 6:01 pm - Reply

        You make a great point, Greg. The victory will be good for the principle of the matter. These registrants have done their time. They should have the same freedom of speech everyone else enjoys in free society. The government should never be able to diminish free speech one iota, so long as speech isn’t criminal. (Threats, etc. You can’t expect to be able to yell “fire!” in a crowded theater and expect for 1st Amendment to protect you.

  • Richard G. Kopf
    4 November 2016 at 10:03 am - Reply

    Chris,

    Having some in-depth experience with such cases, see Doe v. Nebraska, 898 F. Supp. 2d 1086 (D. Neb. 2012) (cited in the petition), I wish to suggest that these laws are often intentionally structured as extra punishment which, of course, is forbidden ’cause such laws are supposed to be predicated according to the Constitution on non-punitive justifications.

    If a legislature is truly concerned with protecting children, a rational body would do no more than restrict access only to sex offenders who have used specific sites to offend against real children. But,since that is only a tiny fraction of those who reside on these stupid and over-inclusive sex offender lists, legislatures apply these broad prohibitions because if they didn’t they would be deprived of the sub rosa sadistic pleasure of inflicting extra pain on those who are, as a class, somewhere below scabrous lepers.

    Thanks for writing about this important case. All the best.

    RGK

    • CLS
      8 November 2016 at 9:15 am - Reply

      Judge:

      Thanks for offering your insight, which I always value.

      I hope the Supremes listen to you and I on this one, and fall on the side of free speech and the First Amendment.

      I stopped smoking hopeium last year for Lent, though.