When Lester Packingham Jr. had a good outcome in traffic court, he did something that has become routine in today’s Internet age – he turned to Facebook and announced the news writing, “No fine. No Court costs. No nothing. Praise be to God. Wow. Thanks, Jesus.” The post, written in 2010, has landed Packingham in the middle of a hotly contested Supreme Court case.
Packingham was arrested for having consensual sex with a 13-year-old back in 2002 when he was 21. He said the two were dating and he wasn’t aware of her real age. He pled guilty to indecent liberties with a minor and served 10 months in prison. Under North Carolina law, he was required to register as a sex offender, a designation that lasts for 30 years.
In 2008, North Carolina passed a law prohibiting registered sex offenders from using commercial social networking sites that allow minors to join. Just like there are laws in place to keep sex offenders away from schools, playgrounds, and daycare centers, the measure was meant to ban predators from virtual sites where minors tend to gather.
After a Durham police officer investigated Packingham’s post and discovered he was using Facebook under an alias, Packingham was prosecuted and convicted of a felony in trial court. The North Carolina Court of Appeals found that banning use of social media websites was unconstitutional, but in a divided decision, the North Carolina Supreme Court reversed and ruled that the law was constitutional as it was a “limitation on conduct” and not a restriction of free speech. Now it is up to the U.S. Supreme Court to decide whether or not the law violates the First Amendment.
While other states limit Internet use as a condition of parole, restricting social media for offenders who have committed particular crimes, or require offenders to disclose their online usernames and profiles, North Carolina’s law is a sweeping ban barring all registered sex offenders from a variety of social media sites including Facebook, Twitter, and Instagram. So far, over 1,000 people have been prosecuted under this law.
The state contends that its ban was adopted to prevent sexual predators from finding and grooming potential targets online. Social media sites make it easy for offenders to create a fake persona and gather information about young people, enabling them to build trust and lure potential victims into meeting in real life.
Packingham’s lawyer Stanford law professor David Goldberg argued that making it illegal for his client to do anything at all on social media, including praising God, was a denial of his fundamental right to free speech and was ”totally unrelated to the government’s interest in preventing” child abuse.
Packingham, now 36, had maintained a clean record. There was no evidence showing he used Facebook to contact minors or post anything indecent, and a police search of his house didn’t show any inkling of sex crimes or child abuse.
Supporters of the law say that offenders can still say whatever they want on the rest of the Internet.
“This North Carolina law keeps registered sex offenders off of social networking websites that kids use without denying the offenders access to the Internet. It just keeps them off of certain web sites,” said North Carolina Attorney General Josh Stein, whose office is defending the law.
Most of the justices seemed to agree that North Carolina’s ban was going too far in impeding First Amendment rights and restricting networks that have become a central part of everyday life for millions.
Indeed, social media has changed a lot since the measure was unanimously passed in 2008. Not just young people but those of all ages from all over the world are active users, and sites like Facebook and Twitter have become primary sources of news and information.
Justice Elena Kagan said the measure prevents people from having access to messages from elected officials.
“Everybody uses Twitter. All 50 governors, all 100 senators, every member of the House has a Twitter account,” Kagan said. “So this has become a crucial — crucially important channel of political communication.”
Justice Ruth Bader Ginsburg also voiced concern saying, “These people are being cut off from a very large part of the marketplace of ideas. The First Amendment includes not only the right to speak, but the right to receive information.”
Justice Samuel Alito asserted that there are other methods of communication and news sources outside of social media.
“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. “But I don’t know that any channels of communication that were available at that time have been taken away. So if there were alternative channels then, why would there not be alternative channels now?”
Another issue is the ambiguous scope of the law. The state maintains that the statute is meant to only ban social media sites where members can link to other people’s personal pages. However, some justices said the wording could mean the ban extends to other sites such as New York Times and Food Network.
The measure also has an exemption for websites that only provide chat rooms or photo-sharing services. Justice Kagan pointed out that this means offenders could still be active on Snapchat, an app mainly used by millennials to send and receive videos and pictures that self destruct after 1-10 seconds.
While keeping children safe and protected online is a serious matter, it’s worth noting the extent of people this social media ban affects. About 850,000 people are on sex offender registries nationwide, and the crimes that put offenders on the list range greatly. Eleven states require sex offender registration for peeing in public. In California, flashing your breasts can get you arrested and put on the registry. State law also makes it illegal to have sex with a minor who is three years younger, meaning it’s a crime for a college junior to have sex with a freshman. In many states, minors who engage in sexting, taking and sharing nude photos of themselves, can potentially be listed as sex offenders for life.
Even if someone is on the sex offender registry due to a law that is not valid in North Carolina, they can still be required to register should they decide to move to the Tar Heel State. With the spectrum of offenses being so extensive, one has to ponder whether it makes sense to cut off all offenders from social media, regardless of the nature of their offenses.
Louisiana Deputy Solicitor General Colin A. Clark wrote a brief supporting the law and was joined by attorneys general in 12 other states. States are trying “to come up with a practical solution to the practical problem of sex offenders being on social media and harvesting information about our children and then soliciting them online,” Clark said.