Law Quarterly

The Legality of a Sex Offender’s Facebook

By admin

Nov
28

Lester Packingham, a 21 year old college student, was convicted of taking “indecent liberties” with a minor in 2002. In line with North Carolina Law, he served a sentence of 10-12 months and then a 24 month supervision period upon release (1). Flash forward to 2010, where he posted a status on his Facebook that was thanking God in reference to a parking ticket that he was able to get dismissed. Despite the fact that his conviction had no special stipulations, he was arrested after posting that status due to North Carolina’s sex offender laws that prohibit previously convicted offenders from accessing social media websites altogether. Packingham argued that it violated his First Amendment rights. /Packingham v. North Carolina/ (2017) made its way to the Supreme Court and established important precedents for future sex offender cases, as well as questioned the validity of previous cases in dealing with sex offenses. It also brings up a much larger question: to what extent should previous sex offenses limit the rights of those that have been released?

In a unanimous decision, the Supreme Court ruled that North Carolina’s law prohibiting sex offenders from accessing social media violated the First Amendment rights of offenders. They ruled that a law cannot restrict more freedom of speech than necessary in order to serve the interests of the government (2). While the government had a legitimate interest in protecting minors from predators online, the law was far too broad in its restrictions and went far beyond what is necessary to serve their interests. By making this decision, the Supreme Court recognized the vast array of purposes social media serves in our daily lives, whether that be for information, news, or connecting with others. Also, a narrower law that details specific sites restricted from use (rather than social media in general) could be used to achieve the same goal as stated by the unconstitutional North Carolina legislation.

/Packingham v. North Carolina/ (2017) is not typical in the realm of sex offender cases. Legislators have passed laws that have specifically targeted restricting the rights of sex offenders, such as registries and residency restrictions. The Supreme Court usually accepts the notion that vulnerable minors need to be protected from sex offenders and therefore have upheld sex offender based laws. Here, the Court did not reject the sentiment that sex offenders pose a significant risk to others but instead ruled that North Carolina had not shown that its broad social networking ban served the purpose of protecting potential victims (3).

This case serves as an example of the internet as a place for exercising the First Amendment. Previously, First Amendment rights have been applied to physical spaces, especially in parks and streets. An example of this was in the case /Ward v. Rock Against Racism/ (1989), where an organization called Rock Against Racism (RAR) that spoke out against racism via musical performance, refused to lower their sound systems in response to complaints from locals around the area of their performance. It was ruled that RAR was exercising their First Amendment rights and that interference with this violated those rights (4). In Packingham’s case, the internet and social networking sites are now seen as another space for freedom of speech, as stated by Justice Anthony Kennedy: “…[Social networking sites are] the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the fact realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard” (5).

/Packingham/ does not explicitly deny the potential of states to implement legislation that bans sex offenders from using certain aspects of the internet. The possibility is still open and allows state governments to protect vulnerable people online but North Carolina’s legislation was far too broad to reasonably justify their only interest being in protecting potential victims.

In defense of the North Carolina statute, lawyer Robert C. Montgomery included in his argument that sex offenders have high rates of recidivism, or repeat behavior (6). The Supreme Court has affirmed this sentiment, as seen in the case of /Smith v. Doe/ (2003), where the decision to uphold Alaska’s sex offender registration law cited recidivism rates as “frightening and high” (7). While protecting potential victims online is important, there should be caution with using a justification like this in regards to upholding legislation that violates constitutional rights. The statement that recidivism is likely in sex offenders has virtually no data behind it; it comes from a /Psychology Today/ article published in 1986 (8).

This article states, “Most untreated sex offenders released from prison go on to commit more offenses — indeed, as many as 80 percent do” (9). The statistic was backed by neither evidence nor an explanation. Justices have relied upon this statistic because it comes from /A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender/, an otherwise reputable and reliable source that included in its 231 pages a reference to the Psychology Today article (10). Other statistics put recidivism rates at much lower numbers and the guide even stated that /Psychology Today’s/ findings were highly exaggerated.

The basis of US jurisprudence that deals with sex offenses has come from an unreliable and unsupported statement made in a /Psychology Today/ article from an outdated general audience magazine from the 1980s, not a peer reviewed journal. This should be taken into account, considering the gravity of cases like /Packingham/, where an individual’s constitutional rights are on the line. Sex offender cases need to be dealt with in a careful and focused way that avoid casual assumptions, and unreliable statistics. The Justice Department reports a steady increase of recidivism rates over the last 20 years that peak at 27%, which is concerning, but it is nowhere near 80% (11). Any sign of recidivism rates should warrant punitive measures such as strict sex offender registry laws, but future judgments would be better served if they are based on facts, not myths.

Despite possible mistakes in previous sex offender cases, /Packingham/ serves as a powerful example for the amorphous nature of First Amendment rights and sex offender cases. The use of the First Amendment has proliferated in the online world, which is now the largest platform for the free flow of ideas, information, news, etc. The internet may even serve as a form of rehabilitation for sex offenders, where they can go and seek help from others. It is important to remember that the basis for any court decision, whether it be in relation to sex offenders or not, must have solid empirical grounds and justification. Court decisions must adhere to the Constitution and American jurisprudence without haphazardly ruling against the offender because of faulty sources and popular myths. Any efforts to protect potential victims on the internet must remain focused in achieving their goal and constitutionality.

By Contributor Stephen Perez

Notes

  1. “Packingham v. North Carolina,” /Oyez/, Accessed 24 October, 2018. https://www.oyez.org/cases/2016/15-1194.
  2. “Packingham v. North Carolina,” /Oyez/.
  3. Melissa Hamilton,“Sex Offenders, Social Media and The Supreme Court: Why Have the Justices Relaxed Restrictions?” /Newsweek/, 21 July 2017. https://www.newsweek.com/sex-offenders-social-media-and-supreme-court-why-have-judges-relaxed-640260.
  4. “Ward v. Rock Against Racism (1989),” /FindLaw/, Accessed 24 October 2018. https://caselaw.findlaw.com/us-supreme-court/491/781.html.
  5. Hamilton, “Sex Offenders, Social Media and The Supreme Court: Why Have the Justices Relaxed Restrictions?”
  6. Adam Liptak, “Did the Supreme Court Base a Ruling on a Myth?” /New York Times/, 6 March 2017. https://www.nytimes.com/2017/03/06/us/politics/supreme-court-repeat-sex-offenders.html.
  7. “/Smith v. Doe/,” Oyez, Accessed 24 October, 2018. https://www.oyez.org/cases/2002/01-729.
  8. Liptak, “Did the Supreme Court Base a Ruling on a Myth?”
  9. U.S. Department of Justice and National Institute of Corrections, /A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender: Breaking the Cycle of Sexual Abuse/, by Barbara K. Schwartz and H.R. Cellini, February 1988. https://www.ncjrs.gov/pdffiles1/Digitization/123683NCJRS.pdf.
  10. Schwartz and Cellini, /A Practitioner’s Guide/
  11. Liptak, “Did the Supreme Court Base a Ruling on a Myth?”

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