By: Alison J. Rossi<\/p>\n\n\n\n
Early in summer of 2018, the Supreme Court of the United States unanimously ruled<\/a> that a North Carolina law that banned convicted sex offenders from accessing or using social media websites was unconstitutional. In Packinham v. North Carolina, <\/em>the Court ruled North Carolina\u2019s 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\u2019s 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.<\/p>\n\n\n\n The case<\/a>\nstarted in 2002, when 21-year-old Lester Gerard Packingham became a registered\nsex offender for a \u201ccrime against a minor\u201d. Eight years later, Packingham\nposted on Facebook about an experience he had in traffic court. Packingham was\nthen charged under the North Carolina statute, G.S. \u00a7 14-202.5. Packingham was\nlater convicted under the statute, even though there was no indication he had\ncontacted any minors using the website. He filed an appeal on the basis the law\nwas unconstitutional.<\/p>\n\n\n\n Before the Supreme\nCourt, North Carolina argued the law was designed to prevent registered sex\noffenders from using the internet to gather information on minors. The Court,\nwhile recognizing this as a legitimate government interest, ruled the law was\nnot narrowly tailored to that end. The\nlaw<\/a> defined \u201csocial networking websites\u201d very broadly, to include\nany website that facilitates the meeting of two or more people for social\nreasons and allows consumers to create personal profiles and message other\nusers. The Court said that these websites \u201cprovide perhaps the most powerful\nmechanisms available to a private citizen to make his or her voice heard.\u201d This,\nthe Court stated, made social media a \u201csoapbox\u201d that could project an\nindividual\u2019s message farther than other methods of speech. The state argued\nthat some registered sex offenders had used social media for unlawful purposes.\nHowever, the law banned all registered sex offenders from using social media\nfor any<\/em> purpose at all.<\/p>\n\n\n\n Historically, the\nCourt has been reluctant to overturn statutes aimed at sex offenders. For example, in 2002 the Court heard McKune v.\nLile<\/a><\/em>, in which an inmate, convicted of rape, was told to\nparticipate in a treatment program that required him to admit to his past\nsexual conduct (even events on which he had not been convicted) or face\nrelocation to a prison with less favorable conditions. The inmate complained\nthis program violated his Fifth Amendment rights against self-incrimination. However,\nthe Court stated he was free to refuse to participate in the program and the\nthreat of relocation did not amount to coercion as it constituted only a de minimus <\/em>adjustment to his already\nrestricted liberties. <\/p>\n\n\n\n Again, in 2003,\nthe Court declined to strike down a law aimed at individuals convicted of sex\ncrimes. In Smith v. Doe<\/a><\/em>,\na convicted sex offender challenged the Alaska Sex Offender Registration Act on\nthe ground it \u201cconstituted an unconstitutional ex post facto law.\u201d The plantiff\ncomplained the Act, which required sex\noffenders\u2014whether they were convicted before or after the adoption of the\nAct\u2014to register with the state, was punitive in nature and so could not be\napplied to offenders convicted before the Act was put into effect. The Court\ndisagreed, saying convictions were a matter of public record and so were not\npunitive.<\/p>\n\n\n\n However, in 2015,\nthe Court took a turn and did recognize a sex offender\u2019s right to privacy in\ncertain instances. In Grady v. North\nCarolina,<\/a><\/em> the Court ruled\nthat attaching a monitoring device to a registered sex offender constituted a\nFourth Amendment search. While the court did not say satellite-monitoring was per se <\/em>unconstitutional, it did find\nthat searches of this type were subject to the same restrictions as other types\nof searches. This marked a turn in the Court\u2019s openness to limiting a state\u2019s\nability to restrict the rights of sex offenders.<\/p>\n\n\n\n The Court may be\nbecoming more open to overturning laws aimed at sex offenders. Should these\nlaws be challenged, it is more likely that the Court would uphold these\nchallenges. As an example of a law that could be challenged, another North\nCarolina law seems to place restrictions on the First Amendment rights of\nregistered sex offenders. G.S.\n\u00a7 14-202.6<\/a> makes it illegal for registered sex offenders to change\ntheir names. While the state would\nalmost certainly argue there is an important government interest at stake in\nthis law, namely to ensure that the public remains aware of who is on the sex\noffender registry, it seems possible the Court will be open to arguments that\nthis, too, violates the First Amendment and right to freedom of expression. The\nPackinham<\/em> ruling may encourage\nindividuals to bring claims against these types of laws.<\/p>\n\n\n\n There was a second\nimportant idea in the Packingham <\/em>opinion.\nThe Court seemed to take a stronger stance on the position that access to the\nInternet is protected by the First Amendment. The Court recognized that,\ntraditionally, First Amendment rights have been protected based on \u201cspatial\ncontext.\u201d In the past, this has referred to public streets or parks, but its\nmeaning has expanded in the age of the Internet. The Court cited Reno v.\nAmerican Civil Liberties Union<\/a><\/em> to illustrate this idea. In Reno<\/em>, the Court stated cyberspace is\n\u201cone of the most important places to exchange views\u201d due to its \u201crelatively\nunlimited, low-cost capacity for communication of all kinds.\u201d The Court\nrecognized the Internet as one of the most important spatial areas for the\nexchange of ideas, specifically mentioning Facebook and the fact that it had\n1.79 billion users at that time. <\/p>\n\n\n\n The Court\nrecognized that many types of protected speech are exercised using the\nInternet, including discussions of politics and religion. As an example, the\nCourt discussed Twitter and the large number of Members of Congress that have\nset up accounts specifically to connect with their constituents. While this\nidea of protection of the right to Internet access appears as dicta in Packingam, <\/em>the Courts treatment of it seems\nto indicate that it is a right that may be expanding. This will be an important\nconcept to keep an eye on as the Court continues to analyze topics concerning\nthe Internet and the First Amendment.<\/p>\n\n\n\n <\/p>\n\n\n\n <\/p>\n","protected":false},"excerpt":{"rendered":" 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\u2019s law violated the First Amendment. 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