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U.S. Supreme Court Weighs Bar on Sex Offenders’ Use of Social Media

By Mark Walsh — February 27, 2017 7 min read
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In a lively argument on Monday that touched on school websites, chat rooms, and President Donald Trump’s Twitter account, the U.S. Supreme Court took up a challenge to a North Carolina law that bars convicted sex offenders from accessing social networking sites that allow minors to create accounts.

The state argued that similar restrictions that keep those on sex offender registries from hanging around schoolyards and playgrounds are needed for parts of the Internet where children may be vulnerable to contacts leading to sexual abuse.

“For many years, North Carolina, like other states, had laws prohibiting sex offenders from being at physical places where children congregate—schools, playgrounds, day cares, and parks,” said Robert C. Montgomery, a senior state deputy attorney general, said during the arguments in Packingham v. North Carolina (Case No. 15-1194). “In 2008, North Carolina decided to prohibit sex offenders from being at virtual places where children congregate online—specifically, commercial social networking websites.”

But David T. Goldberg, the lawyer representing a sex offender who was convicted of a fresh criminal violation after accessing Facebook, said the state law “reaches vast swaths of core First Amendment activity that is totally unrelated to the government’s preventative purpose.”

“The law does not operate in some sleepy First Amendment quarter,” Goldberg said, adding that it “forbids speech on the very platforms on which Americans today are most likely to communicate, to organize for social change, and to petition their government.”

The case concerns Lester Gerard Packingham, who was 21 years old in 2002 when he pleaded guilty to taking liberties with a 13-year-old. He received a suspended sentence plus two years of probation and the requirement that he register as a sex offender.

In 2008, North Carolina amended its sex-offender registry law by adding its prohibition on those on the registry from accessing “commercial social networking Web sites.”

In 2010, Packingham took to Facebook to post a short message praising God after a court had dismissed a traffic citation against him. A Durham, N.C., police officer who was actively looking for sex-offender registry members who were participating in social media came across the post. The officer identified Packingham as the author of the post and charged him with violating the 2010 law. Packingham was convicted and sentenced to a suspended term of six to eight months, plus supervised probation.

A mid-level state appellate court reversed the conviction, holding that the 2008 law was not narrowly tailored to the problem of keeping sex offenders away from children online and that it prohibited them from accessing a wide range of information.

The North Carolina Supreme Court reversed that ruling, reinstating Packingham’s conviction and upholding the law. The majority said the law was primarily a restriction on conduct that imposed only an incidental burden on Packingham’s First Amendment free speech right to express himself and receive information.

In the U.S. Supreme Court, Packingham has support from several free speech advocacy groups.

“The practical effect [of North Carolina’s law] is to bar registered sex offenders not merely from the school, the playground, and even the town square, but from entire regions of the country where their fellow citizens are gathered for the purpose of information exchange about any and all subjects of human inquiry,” says a friend-of-the-court brief filed on Packingham’s side by the Electronic Frontier Foundation.

North Carolina received friend-of-the-court briefs in support from 13 other states as well as state and municipal government associations and groups whose mission is to stop child predators.

“Parents once had to worry about predators being present in places like neighborhood parks, school playgrounds, and shopping malls,” says a brief by the Council of State Governments. “Now parents have to worry about predators being present, in a virtual sense, in laptops in their children’s bedrooms and on phones their teenagers carry with them almost everywhere they go.”

From ‘Public Square’ to Twitterverse

During the Feb. 27 oral arguments, the justices’ probed the positions of Packingham’s lawyers, but were hardest on the lawyer for the state.

Justice Ruth Bader Ginsburg asked Goldberg about the longtime practice of most states and the federal government of barring ex-felons from voting and “keeping and bearing arms.”

“Those are constitutional rights” just like the right to free speech, she pointed out.

Goldberg said such rights were fundamental, “but they are different.” While someone convicted of a crime immediately loses his Second Amendment right to bear arms, “they don’t lose their First Amendment rights.”

Ginsburg also pressed Goldberg on whether he thought the state law could be narrowed.

“Suppose the law simply said that someone who was a sex offender could not communicate with a minor on social media,” she said. “Would you agree that that would be constitutional? ... There’s a concern here for the safety of children.”

Goldberg conceded that such a narrower approach would likely pass constitutional muster.

Defending the North Carolina law, Montgomery faced tough questions from several justices, to the point that by the end of the argument, it appeared that the law was in trouble.

Justice Elena Kagan asked him about the rise of social media sites such as Twitter, Facebook, and LinkedIn and their role in political discourse.

“So a person in this situation, for example, cannot go onto the president’s Twitter account to find out what the president is saying today?” Kagan asked. That’s correct, Montgomery said.

“Not only the president,” Kagan continued. “I mean, we’re sort of aware of it because the president now uses Twitter. But in fact, everybody uses Twitter. All 50 governors, all 100 senators, every member of the House has a Twitter account. So this has become a crucially important channel of political communication. And a person couldn’t go onto those sites and find out what these members of our government are thinking or saying or doing.”

Montgomery said there were non-social network alternatives those on sex-offender registries could utilize, such as plain old websites.

Kagan also questioned why North Carolina’s law exempted sites that provide only one of such discrete services as photo-sharing, email, and chat rooms.

“So why is that?” Kagan said. “Because if I would have said, like, where the most dangerous activity takes place, it’s in chat rooms and via photo sharing.”

Montgomery said the state legislature was seeking to narrow the restrictions to social media sites where predators could harvest information anonymously.

Justice Ginsburg also worried that the sex offenders covered by the state law were being “cut off from a very large part of the marketplace of ideas. And the First Amendment includes not only the right to speak, but the right to receive information.”

Justice Sonia Sotomayor asked him whether the state’s restrictions would bar a sex offender from visiting the website of a school.

“They can go on the school website,” Montgomery said. “I’m not sure that those have individual information about students typically, personal information that would be of the sort you get off a social networking website, which is whether a child likes puppies or whether their parents have recently been through a divorce. That kind of information can’t be gathered from a school website.”

Justice Anthony M. Kennedy sought to weigh the modern landscape of social media with the frequently mentioned First Amendment concept of the “public square.”

“I don’t know that we ever did have a public square, but assuming we had a public square a hundred years ago, could you say that this person couldn’t go into the public square?” Kennedy said.

“In essence, states have said that sex offenders can’t go into the public square,” Montgomery said, adding later that sex offenders shouldn’t be allowed to approach minors “in the virtual world, either.”

Only Justice Samuel A. Alito Jr. seemed to express a measure of skepticism that social media sites were an essential part of the First Amendment marketplace of ideas, suggesting there were “alternative channels” of communication available now, just as there were in 2003, before the creation of Facebook.

“Now, I know there are people who think that life is not possible without Twitter and Facebook and these things and that 2003 was the dark ages,” Alito said, to laughter in the courtroom. “But I don’t know that any channels of communication that were available at that time have been taken away.”

A decision in the case is expected by June.

A version of this news article first appeared in The School Law Blog.