Departing from its customary reluctance to find fault with laws singling out convicted sex offenders for harsh treatment, after they have completed their sentences, the Supreme Court in Packingham v. North Carolina yesterday struck down a state law making it a felony for registered sex offenders to access commercial social networking websites. The petitioner in Packingham, a registered sex offender, violated the North Carolina law when after learning that a traffic ticket against him had been dismissed in court he posted the following message on his Facebook.com personal profile:

Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent….Praise be to GOD, WOW! Thanks JESUS!

Packingham was convicted and thereafter challenged his conviction on First Amendment grounds, arguing that the law violated his right to free speech.

After a spirited oral argument in late February, the Court today unanimously concluded that the North Carolina law violated the First Amendment. In an opinion authored by Justice Kennedy, the Court was especially troubled by the breadth of the challenged law, noting that its reach could extend well beyond social media websites, such as Facebook.com, LinkedIn, and Twitter, to encompass websites such as Amazon.com and Webmd.com. The law, the Court reasoned,

enacts a prohibition unprecedented in the scope of First Amendment speech it burdens…North Carolina 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. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.

In reaching its decision, the Court assumed that the challenged law was content neutral and was therefore subject to intermediate constitutional scrutiny, yet found that it was not sufficiently narrowly tailored to serve the significant governmental interest involved. Identification of the stringency of the constitutional test to be applied in litigation is of course of paramount importance, but so is how the governmental interest is characterized. And here is where the significance of Packingham might well lie. Whereas in multiple prior decisions the Court characterized the governmental interest in combatting sexual offending against children as very significant, and invoked dramatic rhetoric of recidivism risk of sex offenders as a whole as “frightening and high” and the like, Justice Kennedy’s opinion for the Court refrained from such language; it simply emphasized the seriousness of preventing sexual offenses directed at children.

The absence of such inflammatory rhetoric about recidivism risk perhaps reflects awareness of recent scholarship making clear that inflated empirical assessments of risk, repeatedly invoked as justification by courts and legislatures to justify expansive and often draconian sex offender-related policies, are well off the mark. (Indeed, it is worth noting that Justice Kennedy himself has used such language in the past.)

Second, and no less important, is language in Packingham suggesting a possible softening of the Court’s customary unequivocal backing of laws imposing harsh sanctions on convicted sex offenders, which the Court acknowledged as numbering among the array of collateral consequences experienced by individuals.  After noting that the First Amendment would permit a more narrowly tailored law, such as one that prohibited contacting a minor or using a website to gather information about a minor, the Court stated:

Specific laws of that type must be the State’s first resort to ward off the serious harm that sexual crimes can inflict.  (Of importance, the troubling fact that the law imposed severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court.)

Later, after expressing its concern that the challenged law foreclosed access to social media altogether, the Court stated that

[i]t 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.

Such sensitivity from a Court that has repeatedly rejected challenges to collateral consequences imposed on sex offenders is noteworthy and perhaps signals change ahead. To be sure, two the foremost government strategies upheld to date, involuntary civil commitment (Kansas v. Hendricks, 1997), and registration and community notification (Smith v. Doe and Connecticut Dept. of Public Safety v. Doe, both 2003), entail different liberty infringements and implicate distinct constitutional provisions from Packingham.  It could be, however, that Packingham is suggestive of a willingness to engage in greater critical scrutiny. Whether this comes to fruition may be clarified soon as the Court has before it a petition for certiorari asking review of the Sixth Circuit’s invalidation of Michigan’s multi-pronged approach, including registration and notification as well as a law prohibiting registrants from living, working or loitering near schools.

Also, it must be acknowledged that while Justice Kennedy’s opinion was joined by four colleagues (Justice Gorsuch did not take part), the three-member concurrence authored by Justice Alito (joined by Chief Justice Roberts and Justice Thomas) contains some of the hyperbolic recidivism-related rhetoric found in prior opinions. The concurrence, though, was prompted by what the Justices perceived as “undisciplined dicta” in Justice Kennedy’s opinion, which they worried that would “equate the entirety of the internet with public streets and parks.” Yet, for the Court’s most conservative Justices to endorse an outcome limiting government power to negatively affect the lives of registered sex offenders is itself a significant development, one that perhaps reflects a coming shift in the Court’s heretofore uncritical endorsement of collateral consequences imposed on sex offenders.