Court rules sex offenders cannot be barred from social media

June 20, 2017 CCRC Staff

The Supreme Court ruled on June 19, without dissent, that sex offenders cannot constitutionally be barred from social-networking sites. SCOTUSblog’s Amy Howe introduced the Court’s ‘s holding in Packingham v. North Carolina as follows:

In 2002, Lester Packingham became a convicted sex offender at the age of 21, after he pleaded guilty to taking indecent liberties with a child – having sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he posted on Facebook to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that makes it a felony for a convicted sex offender to use social-networking websites, such as Facebook and Twitter, that allow minors to create accounts. Today Packingham has something else to be grateful for, and he can take to social media to express that appreciation, because the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

Justice Kennedy, in an opinion joined in full by Justices Ginsburg, Breyer, Sotomayor and Kagan, stated the “fundamental principle of the First Amendment” that everyone should “have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” By barring sex offenders from using social-networking sites, the state “with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” Noting that the issue was not before the Court, Justice Kennedy assumed that the First Amendment may permit a State to enact “specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.” However, “specific laws of that type must be the State’s first resort to ward off the serious harm that sexual crimes inflict.” But North Carolina’s law goes too far, because it stifles “lawful speech as the means to suppress unlawful speech.”

Justice Kennedy also noted the “important” and “troubling” fact that “the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” though this was also not an issue before the Court. He went so far as to suggest that access to the internet may contribute to rehabilitation:

It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

Justice Alito, in a concurring opinion joined by Chief Justice Roberts and Justice Thomas, emphasized the state’s interest in protecting children from abuse: “it is legitimate and entirely reasonable for States to try to stop abuse from occurring before it happens.” But he agreed that the North Carolina law under which Packingham was convicted must be deemed unconstitutionally overbroad because it also bars sex offenders from gaining access to “a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child,” “including, but not limited to, Amazon, The Washington Post, and WebMD.”

We expect to post additional commentary on the Packingham decision soon.