By: Alison J. Rossi
Early in summer of 2018, the Supreme Court of the United States unanimously ruled that a North Carolina law that banned convicted sex offenders from accessing or using social media websites was unconstitutional. In Packinham v. North Carolina, the Court ruled North Carolina’s law violated the First Amendment. This case has broader significance for two aspects of First Amendment law: first, it indicates a shift in the Court’s willingness to limit state restrictions on the First Amendment rights of sex offenders; and second, it implies that the Court may be willing to take a stronger stance on protecting a First Amendment right to Internet access.
The case started in 2002, when 21-year-old Lester Gerard Packingham became a registered sex offender for a “crime against a minor”. Eight years later, Packingham posted on Facebook about an experience he had in traffic court. Packingham was then charged under the North Carolina statute, G.S. § 14-202.5. Packingham was later convicted under the statute, even though there was no indication he had contacted any minors using the website. He filed an appeal on the basis the law was unconstitutional.
Before the Supreme Court, North Carolina argued the law was designed to prevent registered sex offenders from using the internet to gather information on minors. The Court, while recognizing this as a legitimate government interest, ruled the law was not narrowly tailored to that end. The law defined “social networking websites” very broadly, to include any website that facilitates the meeting of two or more people for social reasons and allows consumers to create personal profiles and message other users. The Court said that these websites “provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” This, the Court stated, made social media a “soapbox” that could project an individual’s message farther than other methods of speech. The state argued that some registered sex offenders had used social media for unlawful purposes. However, the law banned all registered sex offenders from using social media for any purpose at all.
Historically, the Court has been reluctant to overturn statutes aimed at sex offenders. For example, in 2002 the Court heard McKune v. Lile, in which an inmate, convicted of rape, was told to participate in a treatment program that required him to admit to his past sexual conduct (even events on which he had not been convicted) or face relocation to a prison with less favorable conditions. The inmate complained this program violated his Fifth Amendment rights against self-incrimination. However, the Court stated he was free to refuse to participate in the program and the threat of relocation did not amount to coercion as it constituted only a de minimus adjustment to his already restricted liberties.
Again, in 2003, the Court declined to strike down a law aimed at individuals convicted of sex crimes. In Smith v. Doe, a convicted sex offender challenged the Alaska Sex Offender Registration Act on the ground it “constituted an unconstitutional ex post facto law.” The plantiff complained the Act, which required sex offenders—whether they were convicted before or after the adoption of the Act—to register with the state, was punitive in nature and so could not be applied to offenders convicted before the Act was put into effect. The Court disagreed, saying convictions were a matter of public record and so were not punitive.
However, in 2015, the Court took a turn and did recognize a sex offender’s right to privacy in certain instances. In Grady v. North Carolina, the Court ruled that attaching a monitoring device to a registered sex offender constituted a Fourth Amendment search. While the court did not say satellite-monitoring was per se unconstitutional, it did find that searches of this type were subject to the same restrictions as other types of searches. This marked a turn in the Court’s openness to limiting a state’s ability to restrict the rights of sex offenders.
The Court may be becoming more open to overturning laws aimed at sex offenders. Should these laws be challenged, it is more likely that the Court would uphold these challenges. As an example of a law that could be challenged, another North Carolina law seems to place restrictions on the First Amendment rights of registered sex offenders. G.S. § 14-202.6 makes it illegal for registered sex offenders to change their names. While the state would almost certainly argue there is an important government interest at stake in this law, namely to ensure that the public remains aware of who is on the sex offender registry, it seems possible the Court will be open to arguments that this, too, violates the First Amendment and right to freedom of expression. The Packinham ruling may encourage individuals to bring claims against these types of laws.
There was a second important idea in the Packingham opinion. The Court seemed to take a stronger stance on the position that access to the Internet is protected by the First Amendment. The Court recognized that, traditionally, First Amendment rights have been protected based on “spatial context.” In the past, this has referred to public streets or parks, but its meaning has expanded in the age of the Internet. The Court cited Reno v. American Civil Liberties Union to illustrate this idea. In Reno, the Court stated cyberspace is “one of the most important places to exchange views” due to its “relatively unlimited, low-cost capacity for communication of all kinds.” The Court recognized the Internet as one of the most important spatial areas for the exchange of ideas, specifically mentioning Facebook and the fact that it had 1.79 billion users at that time.
The Court recognized that many types of protected speech are exercised using the Internet, including discussions of politics and religion. As an example, the Court discussed Twitter and the large number of Members of Congress that have set up accounts specifically to connect with their constituents. While this idea of protection of the right to Internet access appears as dicta in Packingam, the Courts treatment of it seems to indicate that it is a right that may be expanding. This will be an important concept to keep an eye on as the Court continues to analyze topics concerning the Internet and the First Amendment.