{"id":10710,"date":"2017-11-13T15:02:52","date_gmt":"2017-11-13T20:02:52","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=10710"},"modified":"2017-11-13T15:41:37","modified_gmt":"2017-11-13T20:41:37","slug":"packingham-v-north-carolina-sex-offenders-facebook-and-the-first-amendment","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/packingham-v-north-carolina-sex-offenders-facebook-and-the-first-amendment\/","title":{"rendered":"Packingham v. North Carolina: Sex Offenders, Facebook, and the First Amendment"},"content":{"rendered":"

\u201cWhile we may now be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.\u201d[1]<\/a><\/p>\n

So spoke Justice Kennedy in the Court\u2019s recent decision in Packingham v. North Carolina<\/em>, in which a unanimous Court struck down a North Carolina statute that made it a felony for a convicted sex offender to use any social-networking website that allows minors to create accounts. Writing for the majority, Justice Kennedy\u2019s opinion held the statute to be an overbroad and unconstitutional violation of the First Amendment.[2]<\/a> It also vindicated the rights of one of the more marginalized communities in American society: sex offenders.<\/p>\n

The Statute<\/strong><\/p>\n

In 2002, Leonard Graham Packingham (then a 21 year-old college student) pleaded guilty to taking indecent liberties with a thirteen year-old girl.[3]<\/a> Because his crime constituted \u201can offense against a minor,\u201d Packingham was required to register as a sex offender under the North Carolina Sex Offender Registry statute, N.C.G.S. \u00a714-208.[4]<\/a> He was sentenced to 10-12 months in prison. The judge later suspended his sentence in favor of 24 months of supervised release, which Packingham subsequently completed.[5]<\/a><\/p>\n

North Carolina has some of the toughest laws with respect to punishing sex offenses involving minors, with a rigorous registry system, mandatory minimum sentences, civil commitment, satellite monitoring, and residency restrictions.[6]<\/a> These laws got even tougher in 2008, when the North Carolina legislature banned registered sex offenders from accessing commercial social networking web sites \u201cwhere the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.\u201d[7]<\/a> Specifically, the law prohibits registrants from \u201caccessing\u201d any site that derives revenue from advertising, facilitates social interaction, allows users to create personal profiles or post messages, and permits access to minors.[8]<\/a> This statutory language was broad enough to apply to a wide variety of internet activities, including \u201cpurchasing a book at Amazon.com, researching a medical condition on WebMD.com, listening to music at Soundcloud.com, looking up basketball scores on ESPN.com, or reading any of the 70 million blogs at WordPress.com.\u201d[9]<\/a><\/p>\n

In 2010, Packingham, excited that his traffic ticket had been dismissed in state court, logged into Facebook and posted the following statement on his personal profile:<\/p>\n

\u201cMan God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent. . . . . .Praise be to GOD, WOW! Thanks JESUS!\u201d[10]<\/a><\/p>\n

The Durham Police Department had been investigating registered sex offenders who were possibly violating the statute, and, through checking court records, discovered that Packingham had posted on Facebook.[11]<\/a> Packingham was indicted and ultimately convicted for violating \u00a7 14-202.5.[12]<\/a> At no point during the trial was it ever contended that Packingham had attempted or succeeded in contacting a minor, or that a minor was at all involved in his Facebook use.[13]<\/a><\/p>\n

Packingham appealed, winning at the intermediate appellate level but losing in the North Carolina Supreme Court, which held that the law was not overbroad because it left open adequate alternative means of communication. According to the North Carolina Supreme Court, because Packingham couldstill access websites that perform similar functions as social media. \u201c[E]ven where the defendant is correct,\u201d the North Carolina Court wrote, \u201cthe Web offers numerous alternatives that provide the same or similar service that defendant could access,\u201d since they only allowed users over age eighteen. For instance, the Court noted that Packingham could continue to access the Paula Deen Network, \u201ca commercial social networking website that allows registered users to swap recipes and discuss cooking techniques.\u201d[14]<\/a><\/p>\n

The Supreme Court granted cert.<\/p>\n

\u201cA Prohibition Unprecedented in Scope\u201d<\/strong><\/p>\n

The Supreme Court reversed. Applying intermediate scrutiny, Justice Kennedy\u2019s majority opinion acknowledged the state\u2019s compelling interest\u2014protection of children from sexual abuse\u2014and \u201ccontent neutral\u201d restriction that did not favor a particular viewpoint.[15]<\/a> Nonetheless, the Court still found that the statute represented \u201ca prohibition unprecedented in the scope of First Amendment speech it burdens.\u201d[16]<\/a> By essentially prohibiting sex offenders from accessing a wide variety of the internet\u2019s functions, the North Carolina statute, \u201cwith one broad stroke,\u201d singled out one specific group of people from accessing \u201cthe principle source[] for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.\u201d[17]<\/a> Thus, while the Court was careful to note that states could enact narrower statutes preventing specifically criminal acts, the challenged statute was unanimously ruled a violation of the First Amendment.[18]<\/a><\/p>\n

Justice Alito, joined by Justices Roberts and Thomas, concurred separately. While he also found the law overbroad, he warned that the majority\u2019s \u201cundisciplined dicta\u201d might be interpreted to prevent states from restricting dangerous predators from any<\/em> internet sites.[19]<\/a><\/p>\n

\u00a0<\/strong>\u201cThe Most Marginalized Group in Society\u201d<\/strong><\/p>\n

Although the decision was lauded as a victory for the First Amendment, the case was also notable for being one of the rare cases in which the Supreme Court ruled in favor of a sexual offender.[20]<\/a> The Court\u2019s decision was not exactly unexpected; as observers of the argument noted, the Justices seemed skeptical of the state\u2019s position during oral argument, with Justice Kagan wryly asking whether the state contended that \u201cthere was a Constitutional right to Snapchat, but not to Twitter.\u201d[21]<\/a> Still, at least some of the Justices seemed persuaded by North Carolina\u2019s argument; Justice Alito, for instance, commented that sex offenders could still access podcasts, blogs, and the New York Times, even if they \u201cthink that life [is] not possible without Twitter or Facebook.\u201d[22]<\/a><\/p>\n

Additionally, while Packingham<\/em> clearly indicated the Court\u2019s commitment to protecting the First Amendment, it sent mixed signals about whether the Court is ready to reconsider some of its jurisprudene regarding societal treatment of sex offenders. Sex offenders, as Ilya Shapiro of the Cato Institute has noted, are \u201cprobably the most marginalized group in society,\u201d[23]<\/a> and are subjected to lifelong restrictions that last far beyond the completion of their sentences.[24]<\/a> After completing prison sentences, for instance, sex offenders can be constitutionally subjected to indefinite \u201ccivil commitment\u201d in prison-like circumstances,[25]<\/a> as well as travel restrictions so strict they are forced to live under bridges and in parking lots.[26]<\/a> Sex offenders are subject to severe registration and notification requirements, including punishments for failing to notify authorities before and after they move.[27]<\/a> Additionally, Circuit courts have upheld conditions of supervised parole that effectively ban sex offenders from using the internet.[28]<\/a><\/p>\n

While it ruled in Packingham\u2019s favor, the Packingham<\/em> Court did not necessarily signal it would reign in the severe treatment of sex offenders in modern society. During argument, for instance, Justice Sotomayor remarked that \u201c[t]here\u2019s a high statistical inference that recidivism will follow one sexual crime to another,\u201d[29]<\/a> and Justice Alito\u2019s concurrence asserted that \u201cconvicted sex offenders . . . are much more likely than any other type of offender to be rearrested for a new rape or assault.\u201d[30]<\/a> These assertions seem to justify society\u2019s treatment of sex offenders, even though they are back up by little actual evidence. In fact, numerous studies have proven that the Supreme Court\u2019s entire jurisprudence on sex offenders may be based on the incorrect assertion regarding recidivism.[31]<\/a> A recent Department of Justice study found the rate of recidivism among sex offenders to be just under 3.5 percent\u2014far from the high numbers the SCOTUS has cited in the past[32]<\/a> (for instance, in 2002\u2019s McKune v. Lile<\/em>, [33]<\/a> Justice Kennedy wrote that the recidivism rate for sex offenders is \u201cfrightening and high,\u201d citing a now-disproven government manual that found it to be around 80 percent. The manual itself was based on a single article from Psychology Today<\/em>, which was not based on a study or any evidence other than the author\u2019s opinion[34]<\/a>). Further, the majority of rearrests for all<\/em> offenders are not for new sex offenses, meaning that studies should be looking at recidivism rates generally, rather than solely for sexual offenses.[35]<\/a> In fact, the rate of rearrest for the same crime is lower among sex offenders when compared to non-sex offenders.[36]<\/a><\/p>\n

Perhaps Packingham<\/em> represents the Court turning over a new leaf, and recognizing that sex offenders are people too. Or, perhaps the Court is more concerned with the protection of the First Amendment, and future cases will be back to \u201cbusiness as usual\u201d when it comes to restricting the civil liberties of a community that is arguably among the most marginalized in society. Only time will tell. I would argue, however, that the Court\u2019s current jurisprudence is not only based upon false evidence and premises, but is effectively counterproductive: one recent study, for instance, found that strict post-release restrictions may prevent sex offenders from reintegrating into society, potentially leading to higher<\/em> recidivism rates.[37]<\/a> Thus, although the Court declined to do so in Packingham<\/em>, it may be time for the Supreme Court (and state legislatures) to evaluate its jurisprudence regarding offenders who commit sexual offenses.<\/p>\n

 <\/p>\n

[1]<\/a>Packingham v. North Carolina<\/em>, 137 S. Ct. 1730, 1736 (2017).<\/p>\n

[2]<\/a> Id.<\/em> at 1735.<\/p>\n

[3]<\/a> Id.<\/em> at 1734.<\/p>\n

[4]<\/a> Id.<\/em><\/p>\n

[5]<\/a> See<\/em> Perry Grossman, \u201cFirst, They Came for the Sex Offenders\u2026\u201d Slate<\/em>, available at<\/em> http:\/\/www.slate.com\/articles\/news_and_politics\/jurisprudence\/2017\/03\/packingham_v_north_carolina_is_a_first_amendment_test_case_in_the_age_of.html<\/a>.<\/p>\n

[6]<\/a> See, e.g.<\/em>, Cydney Joyner, \u201cFirst Amendment Right to Facebook?\u201d Campbell Law Observer<\/em> (21 Nov. 2016), available at<\/em> http:\/\/campbelllawobserver.com\/first-amendment-right-to-facebook\/<\/a>.<\/p>\n

[7]<\/a> See<\/em> N.C.G.S. \u00a7 14-202.5.<\/p>\n

[8]<\/a> Id.<\/em>; see also<\/em> Grossman, supra<\/em> note 5.<\/p>\n

[9]<\/a> Brief of Electronic Frontier Foundation, Public Knowledge, and Center for Democracy & Technology as Amicus Curiae <\/em>to Petitioner, 1.<\/p>\n

[10]<\/a> Packingham<\/em>, 137 S. Ct. at 1734.<\/p>\n

[11]<\/a> Id.<\/em><\/p>\n

[12]<\/a> Id.<\/em><\/p>\n

[13]<\/a> Id.<\/em><\/p>\n

[14]<\/a> 777 S.E.2d 738, 747 (N.C. 2015).<\/p>\n

[15]<\/a> Id.<\/em><\/p>\n

[16]<\/a> Packingham<\/em>, 137 S. Ct. at 1737.<\/p>\n

[17]<\/a> Id.<\/em><\/p>\n

[18]<\/a> Id.<\/em><\/p>\n

[19]<\/a> Packingham<\/em>, 137 S. Ct. at 1738 (Alito, J., concurring).<\/p>\n

[20]<\/a> See, e.g.<\/em>, Bidish Sarma, \u201cThe Supreme Court\u2019s Mixed Signals in Packingham.<\/p>\n

[21]<\/a> See, e.g.<\/em>, Amy Howe, \u201cArgument Analysis: Justices Skeptical About Social Media Restrictions for Sex Offenders,\u201d SCOTUSblog, available at<\/em> http:\/\/www.scotusblog.com\/2017\/02\/argument-analysis-justices-skeptical-social-media-restrictions-sex-offenders\/<\/a>; Grossman, supra<\/em> note 5.<\/p>\n

[22]<\/a> Id.<\/em><\/p>\n

[23]<\/a>. Ilya Shapiro, \u201cEven sex offenders have First Amendment rights,\u201d The Washington Examiner<\/em>, June 19, 2017, available at<\/em> http:\/\/www.washingtonexaminer.com\/even-sex-offenders-have-first-amendment-rights\/article\/2626429<\/a>.<\/p>\n

[24]<\/a> See, e.g.<\/em>, Corey Rayburn Yung, The Emerging War on Sex Offenders<\/em>, 45 Harv. CR-CL L. Rev. 435 (2010); Bidish Sarma, \u201cThe Supreme Court\u2019s Mixed Signals in Packingham,\u201d ACSblog<\/em>, July 10, 2017, available at<\/em> https:\/\/www.acslaw.org\/acsblog\/the-supreme-court%E2%80%99s-mixed-signals-in-packingham<\/a>.<\/p>\n

[25]<\/a> See United States v. Comstock<\/em>, 560 U.S. 126 (2010).<\/p>\n

[26]<\/a> See<\/em> Sarma, supra<\/em> note 25; see also<\/em> Charles Rabin, \u201cACLU sues over rule where sex offenders can live in Miami-Dade,\u201d Miami Herald<\/em> (Oct. 23, 2014), available at http:\/\/www.miamiherald.com\/news\/local\/community\/miami-dade\/article3329717.html<\/a>.<\/em><\/p>\n

[27]<\/a> Sarma, supra<\/em> note 25.<\/p>\n

[28]<\/a> See, e.g.<\/em>, United States v. Gauld<\/em>, 833 F.3d 941, 945\u201346 (8th Cir. 2016) (upholding a broad computer and internet ban as a condition of Gauld\u2019s supervised release); United States v. Alvarez<\/em>, 478 F.3d 864, 867 (8th Cir. 2007) (upholding the district court\u2019s broad internet restriction as a condition of supervised release).<\/p>\n

[29]<\/a> Id.<\/em><\/p>\n

[30]<\/a> Packingham<\/em>, 137 S. Ct. at 1739 (citing McKune<\/em> v. Lile<\/em>, 536 U.S. 24, 33 (2002)).<\/p>\n

[31]<\/a> See, e.g.<\/em>, Tamara Rice Lave, Throwing Away The Key: Has the Adam Walsh Act Lowered the Threshold for Sexually Violent Predator Commitments Too Far?<\/em>, 14 U. Pa. J. Const. L. 391 (2011); David Feige, \u201cThe Supreme Court\u2019s Sex Offender Jurisprudence Is Based on a Lie,\u201d Slate<\/em>, available at<\/em> http:\/\/www.slate.com\/articles\/news_and_politics\/jurisprudence\/2017\/03\/sex_offender_bans_are_based_on_bad_science.html<\/a>.<\/p>\n

[32]<\/a> Patrick A. Langan, Erica L. Schmitt, and Matthew R. Durose, Recidivism of Sex Offenders Released From Prison in 1994<\/em>, U.S. Department of Justice, 2003, available at <\/em>https:\/\/www.bjs.gov\/content\/pub\/pdf\/rsorp94.pdf<\/a>.<\/p>\n

[33]<\/a> McKune v. Lile<\/em>, 536 U.S. 24, 33\u201334 (2002)<\/p>\n

[34]<\/a> See <\/em>Feige, supra<\/em> note 34.<\/p>\n

[35]<\/a> Michelle Ye Hee Lee, Justice Alito\u2019s misleading claim about sex offender rearrests<\/em>, Washington Post, June 21 2017, available at<\/em> https:\/\/www.washingtonpost.com\/news\/fact-checker\/wp\/2017\/06\/21\/justice-alitos-misleading-claim-about-sex-offender-rearrests\/?utm_term=.a06607fc375b<\/a>.<\/p>\n

[36]<\/a> Id.<\/em> The one exception is for homicides, though the low rate of rearrests for the same crime there is likely because most individuals receive extensive prison sentences after a homicide conviction.<\/p>\n

[37]<\/a> See<\/em> Gina Puls, No Place to Call Home: Rethinking Residency Restrictions For Sex Offenders<\/em>, 36 Boston College J L& Social Justice 319, 322 (2016).<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201cWhile we may now be coming to the realization that the Cyber Age is a revolution of historic proportions, we 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