But do sex offenders have a First Amendment right to so engage online? And if not, to what extent may a state limit their participation in the marketplace of ideas in cyberspace?
The justices on Monday considered these and other questions as they weighed a North Carolina law that makes it a felony for a person on the state’s sex offender registry to “access” a breadth of “commercial social networking” sites where they can create “personal profiles” to “communicate with other users” who may or may not be minors.
The law doesn’t specifically name what sites are off limits, but it is written broadly enough to encompass even the president’s favorite social media site.
“Everybody uses Twitter,” Justice Elena Kagan said as she pointed to Trump’s own penchant for the site and those who follow it. “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 [listed as a sex offender] couldn’t go onto those sites and find out what these members of our government are thinking or saying or doing. Is that right?”
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. Justice Elena Kagan
Even though states across the country have similar laws limiting social media use by sex offenders, North Carolina’s is especially strict, and the likelihood of being prosecuted under it for otherwise innocent conduct is more than theoretical. Lester Packingham, the man at the center of Monday’s hearing, was convicted in 2010 after he expressed gratitude on Facebook for beating a traffic ticket.
“Man God is good!” he posted, noting that he did not even have to sit through a court hearing. “No fine, No court costs, no nothing spent …. Praise be to GOD, WOW! Thanks JESUS!”
But then Packingham was prosecuted for his Facebook post.
Because he had been convicted in 2002 of a sex-related offense with a minor when he was 21, he was registered as a sex offender, so state authorities said that his Facebook posting violated the North Carolina law. A jury agreed, and he was slapped with a suspended sentence of up to eight months, which he was ordered to serve on probation supervision.
But the justices by and large seemed troubled that North Carolina’s law, though admittedly important for the government’s interest in protecting children, painted with a broader brush than constitutionally permissible.
At one point, Kagan wondered whether the law’s confusing language would “mean that there’s a constitutional right to use Snapchat but not to use Twitter” for sex offenders ― since the law exempts sites that are used only for “photo sharing” but not sites that allow photo sharing, private messaging and other functions.
Justice Anthony Kennedy suggested that the social media sites of today “are greater than the communication you could ever have, even in the paradigm of the public square” — a reference to that place where the First Amendment provides the greatest protection for speech.
But not so with the North Carolina law, which Justice Sonia Sotomayor said could be “applied indiscriminately” not just to those who have been convicted of abusing children but to anyone the state labels as a sex offender ― including those who have consensual sex with someone a few years younger than themselves and are then convicted of statutory rape.
“What’s the inference that every sexual offender is going to use the internet to lure a child?” Sotomayor asked. She later held up a printout of the comments on The New York Times website, where readers can create profiles that let them engage in lively discussions ― a type of activity that an overzealous prosecutor could potentially use against a registered sex offender.
What’s the inference that every sexual offender is going to use the internet to lure a child? Justice Sonia Sotomayor
“Even if The New York Times is not included,” Justice Ruth Bader Ginsburg observed, “the point is that these people are 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 Samuel Alito noted that one possibility for “avoiding First Amendment problems” raised by the law might be to limit its prohibitions to “core social networking sites,” which indicates he might be inclined to overturn Packingham’s conviction but not strike down the whole law.
Still, a majority of the Supreme Court may decide the entirety of the law needs to go. As Kagan seemed to see it, North Carolina simply went too far in excluding sex offenders from sites that are nonetheless an integral part of how society communicates today.
“So whether it’s political community, whether it’s religious community — I mean, these sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights, haven’t they?” she asked.
The justices are expected to decide Packingham v. North Carolina before the end of June.