Protecting Children from Sexual Abuse, or Suppressing Free Speech: Packingham v. North Carolina

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By Joscelyn Solomon; Staff Member (Vol. 16)

Imagine this: you check your 13-year-old daughter’s Facebook account, and you notice that she has received messages from a boy named John Doe. According to his Facebook page, the boy is 13 years old and attends middle school in a neighboring county. You continue to read through the messages, and you see that the boy has invited your daughter to the park after school to engage in sexual activities. You message him back, pretending to be your daughter, and you tell him that you will be there to meet him the next day. He tells you what he will be wearing so that you can easily identify him. One day later, you go to the address that John provided to discover a man who looks to be in his mid-thirties sitting alone on a bench. He is dressed in the blue jeans and UNC sweatshirt that John said that he’d be wearing. You call the police, and they meet you at the scene. “John” is later apprehended, and it is revealed that he is a registered sex offender who has pleaded guilty to taking indecent liberties with a child. His name is not John Doe, and it is later disclosed that “John” planned to kidnap and sexually abuse your daughter.

After his conviction, you speak to the NC Legislature to advocate for a law that prohibits registered sex offenders from having access to a social networking website which the offender knows permits minors to become members. North Carolina hears your concern and enacts a statute making it a felony for a registered sex offender to gain access to a number of websites, including Facebook and LinkedIn.

Now imagine an 18-year-old boy who decides to have sex with his 14-year-old girlfriend over his birthday weekend. The girl’s father finds out, and he goes to the police. Because of the girl’s age, the boy is forced to register as a sex offender. He has never been in trouble before and has plans to go to college. His new status as a registered sex offender brings him nothing but rejection letters from colleges and workplaces. He decides to do some job searching and networking on LinkedIn and Facebook only to discover that he is banned from those websites because of the new statute.

Both scenarios speak of a registered sex offender. Although their offenses are very different, both offenders are prohibited from using a wide range of websites where minors have access, regardless of intent.  Is this suppression of speech justified?

First Amendment Rights Implicated in Packingham v. North Carolina

In Packingham v. North Carolina, the petitioner, Lester Gerard Packingham, challenged N.C. Gen. Stat. § 14-202.5, which makes it a felony for a registered sex offender “to access a commercial social networking Website where the sex offender knows that the site permits minor children to become members or to create or maintain personal web pages.” Addressing the issue of whether the law is permissible under the First Amendment’s Free Speech Clause, the Supreme Court reversed the NC Supreme Court’s decision and held that the statute is unconstitutional because “placing this set of websites categorically off limit from registered sex offenders prohibits them from receiving or engaging in speech that the First Amendment protects and does not appreciably advance the State’s goal of protecting children from recidivist sex offenders.”

Protection of Free Speech v. Protection from Sexual Abuse of Minors

The Supreme Court essentially decided that the use of social media is a constitutional right, even for registered sex offenders. In today’s society, social media sites like Facebook and Twitter are used to incite discussions about politics and religion and to connect with friends and family. Facebook can also be used as a resource to find jobs and networking opportunities. Although it is clear that the State has a legitimate interest in protecting children from sexual abuse, the statute is not “narrowly tailored” enough to protect that interest while protecting First Amendment rights. The North Carolina Court of Appeals noted that even if the petitioner couldn’t access Facebook, he could access “adequate alternative means of communication.” However, the statute is so broad, the majority opinion pointed out, that former sex offenders may be prohibited from accessing websites like Washington Post, WebMD, and Amazon.

In a digital age where 29% of online adults use LinkedIn to find employment, and 79% of Internet users use Facebook, prohibiting access to such websites would be a serious restriction of free speech.  Supporters of the law contend that it doesn’t regulate the actual speech of the sex offender, but rather the time, place, and manner of the speech, which is arguably no different than laws that restrict sex offenders from being within a certain proximity to school grounds. Justice Alito addressed this concern in his concurrence by noting, “if the entirety of the internet or even just ‘social media’ sites are the 21st century equivalent of public streets and parks, then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offender.”

With more than 800,000 sex offenders nationwide, it is important that we protect children from receiving direct messages from registered sex offenders. Perhaps Facebook should increase the age requirement for its users, or North Carolina could create a law that requires sex offenders to indicate their criminal status on their social media websites. Whatever the solution may be, it cannot be a law that abridges the First Amendment rights of registered sex offenders by prohibiting them from accessing the virtual world of the Internet. The potential for access by minors does not rise to a level that can survive the challenge of strict scrutiny through which the First Amendment retains its power.

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