Social Media

Do Sex Offenders Have A Free Speech Right To Use Facebook?

The U.S. Supreme Court considers whether social media is a privilege or a right in modern society

Social Media
Illustration: R. A. Di Ieso
Mar 01, 2017 at 2:21 PM ET

All it took was a simple post on Facebook celebrating the dismissal of a traffic ticket to warrant the arrest of Lester Packingham Jr. That’s because he’s a sex offender living in North Carolina, one of five states where convicted and formerly incarcerated sex offenders like him are barred from using social networking sites.

The first and last Facebook post that he created prior to his arrest was, “No fine. No Court costs. No nothing. Praise be to God. Wow. Thanks, Jesus,” according to the AP.

On Monday, the Court began reviewing the case of the 36-year-old, who was convicted of “taking indecent liberties” with a 13-year-old girl when he was in college eight years ago. Since his original conviction and his 2010 arrest for posting on Facebook, Lester Packingham Jr. had maintained a clean criminal record, according to the oral arguments.

While the 2008 North Carolina law he violated is intended as protection of past and potential victims, its constitutionality is now the subject of a U.S. Supreme Court case. The question is whether the law (which has been upheld in NC) infringes on his free speech rights — and by extension, whether or not social media is a medium of communication inherently protected under the First Amendment. Many civil rights groups, citing precedent laid out by the Reno v. ACLU case that states that First Amendment rights are as strong on the internet as they are in real life, believe that it is.

The American Civil Liberties Union has called the North Carolina law “bad law, bad policy” in challenges within the state’s Supreme Court, and has filed an amicus brief along with the Cato Institute calling the law and Packingham’s conviction unconstitutional. They take issue with the law’s broad nature, which bars access to all sites on which minors are permitted to create accounts. This includes YouTube, Wikipedia, and even the New York Times, thanks to its comment section. Another issue is the fact that sex offenders are effectively barred from using the sites in ways that have nothing to do with contacting or communicating with minors.

“It’s clear that this law isn’t remotely tailored to what the state’s interest is,” said Esha Bhandari, a staff attorney at the ACLU who worked on the brief, told Vocativ. “The state can’t simply ban you from reading things. Any law that has to do with speech has to be narrowly drawn.”

More New York’s Sex Offenders Can’t Play Pokémon Go Anymore

Conservative Justice Samuel Alito seemed the most wary of Packingham’s lawyer’s argument, suggesting that other means of communication available to him were enough.

“I know there are people who think that life is not possible without Twitter and Facebook,” he said, facetiously.

His apparent skepticism of social media’s larger role in society may be rooted in his own personal experience. As of press time, it was unclear whether or not any of the many Justice Alito Twitter or Facebook accounts with his name and image actually belonged to him. Some were obviously parodies, and none of them were verified by Twitter. Aside from Justice Stephen Breyer, who said he had a private Twitter account in 2011, none of the Supreme Court justices appear to be Twitter users.

However, social media usage is nearly ubiquitous overall, something Justice Elana Kagan noted, adding that every governor, U.S. senator, and member of the U.S. House has a Twitter account. Justice Ruth Bader Ginsburg added that people such as Packingham are essentially cut off from the marketplace of ideas, likening these social media sites to a modern-day town square. A law that keeps citizens from accessing this virtual space, she indicated, would be unjustified.

David Hudson Jr., a First Amendment expert with the First Amendment Center who has written extensively on sex offender sentencing, says that this kind of overreaching law isn’t unusual, and that sentencing laws are often “too draconian” when it comes to sentencing sex offenders.

True, social media sites can be an access point for those looking to target minors, and many as four percent of youths aged 10-15 have received unwanted sexual solicitations, according to a 2008 survey. However, while stereotypes often portray sex offenders, pedophiles, hebephiles, and ephebophiles as using the internet for predatory reasons, many actually use online networks for the explicit purpose of communicating with likeminded people as a support group centered around not offending. It has also been found that nearly all sex offenses are committed by people who already know the victim, and that when youths are solicited by strangers offline it is uncommon for those pursuits to then make their way offline.

At present, Indiana, Kentucky, Louisiana, Nebraska, and North Carolina are the only states that prevent sex offenders from using social media sites altogether. Sex offenders on supervised release are kept off these sites in Illinois, Minnesota, New Jersey, New York, South Carolina, and Texas.

Bhandari says she feels optimistic that Supreme Court will strike the law down as unconstitutional under the first Amendment. The case is expected to reach its close this summer.