In 2010, Lester Packingham was convicted of having a Facebook account. That’s a crime in North Carolina, which bars registered sex offenders from “accessing” certain social media sites, including Facebook, Snapchat and Instagram.
On Monday, the U.S. Supreme Court hears arguments on whether that law violates the First Amendment guarantee of free speech. Packingham contends the statute, instead of being narrowly targeted, encompasses a “vast amount” of speech that is protected by the Constitution.
Packingham’s case stems from the guilty plea he entered at age 21 for having consensual sex with a 13-year-old girl he says he was dating. He claimed he didn’t know her age. He got a suspended sentence. Under North Carolina law, he was required to register as a sex offender — a designation that lasts for 30 years.
For seven years after his conviction, Packingham had no further sex offenses — until he signed up for the Facebook account. Indeed, even after his Facebook page was discovered and police searched his house, they did not find any evidence that he was abusing children or committing sex crimes. He was placed on probation for committing this felony and received a suspended sentence.
The state contends its social media ban was adopted to stop sexual predators from “taking what is often the critical first step in the sexual assault of a child,” meaning gathering information about potential young targets. The law applies to websites open to those under 18. “It blinks reality to suggest that sexual predators do not use social media to further their crimes,” the state maintains.
Countering that argument, lawyers for Packingham contend that the statute punishes far more speech than “the minuscule fraction” the state is legitimately worried about.
David Post, an Internet scholar who authored a friend of the court brief siding with Packingham, notes that the 30-year sex offender registry means that Packingham and other former offenders who are not in prison, not under supervised release and not repeat offenders are still subject to limits on their liberties.
“They are ostensibly free and have the same constitutional rights as you or I have,” Post says. And yet, in North Carolina and many other states, laws limit basic First Amendment rights.
Nationwide, an estimated 850,000 people are on sex offender registries. The crimes that got them there range from public urination to the rape of a child. In some states, registration can be for as little as two years for certain convictions, and in other states registration may be required for life.
North Carolina has attempted even greater restrictions.
For example, the same year the North Carolina Legislature unanimously passed the social media ban, it passed a law requiring that certain registered sex offenders have lifetime GPS monitoring and made it forbidden for offenders to go to places “where minors gather.” Parts of that law were ruled unconstitutional by federal courts in 2016.
North Carolina’s social media ban is particularly all-encompassing. Other states restrict Internet use as a condition of parole, or ban from social networking sites only those who commit certain crimes. North Carolina appears to be the only state that currently prohibits all registered sex offenders from a wide range of social media sites.
Two similar statutes — in Indiana and Nebraska — were struck down by the lower federal courts. The North Carolina law was upheld by that state’s Supreme Court.
“States and the federal government have greater leeway when dealing with this class of individuals than when dealing with the general public,” North Carolina says in its brief.
Lawyers for Packingham reply in their brief that “it is hard to imagine that a government would impose, or a court would uphold, a similarly sweeping, criminal ban directed at any other group of people.”