TTYL: SCOTUS Overturns Social Media Ban in Packingham v. NC

Earlier this week, the Supreme Court of the United States affirmed the value of social media as a pervasive news source and a socially ingrained forum for exchanging communications when it struck down an overreaching North Carolina statute. The North Carolina law under consideration made it a felony for any person on the sex offender registry to access any social media platforms minors use. Justices unanimously agreed that “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.” Echoing Justice Kennedy in the court’s opinion, it is “a fundamental principle of the First Amendment that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.”

“All persons” include people on the registry for sex crimes according to the ruling handed down Monday. Packingham v. NC analyzed the extent to which North Carolina’s draconian measure to prevent anyone on the sex offender registry from using social media was necessary and legitimate. Justice Alito mentioned in his concurring opinion that the statute was so broad that accessing Amazon and Walmart could be construed as a violation. Not only was the law extremely broad, but the facts of the case were ripe for a challenge.

In 2002, at age 21, Lester Packingham engaged in sexual wrongdoing with a minor. He was convicted and served out his sentence. Flashforward eight years to 2010, when Lester logged on to Facebook to jubilantly praise God for a dismissed parking ticket. A North Carolina detective discovered the post and arrested him for violating the state ban on accessing Facebook.

Criminalizing the use of social media only further serves to alienate and ostracize registrants.

Three facts are important to remember. One, Lester was no longer under community supervision, but he was still listed on the state’s registry for sex crimes. Two, Lester was not arrested for committing another act of sexual wrongdoing, nor was he ever convicted for using the internet to engage in sexual wrongdoing. Three, over 1,000 people have been prosecuted under this law since 2008. These facts implicate the North Carolina statute as more of a tool to restrict First Amendment rights and incarcerate people, with less utility given to preventing sexual abuse.      

While the government must work to protect those under its reach, it also has to consider the rights afforded under the Constitution. North Carolina’s statute was so sweeping, it undercut basic First Amendment principles. Packingham is a major win for registrants as reform efforts often impose harsher blanket penalties, which hobbles their chances at rehabilitation. As one anonymous registrant noted, “it makes me feel more ‘normal’ for lack of a better word. I’m a young guy; when I meet new people the first question I am asked is what’s my Instagram or Snapchat. I don’t have to shy away from that anymore.”

Another registrant, who also wishes to remain anonymous, echoed those thoughts:

“Packingham is important because it provides a glimmer of hope that the courts realize the far reaching digital world we live in today. Criminalizing the use of social media only further serves to alienate and ostracize registrants, increasing the chances of recidivism and not lowering it. While the underlying goals of such criminalization seem noble, they have been proven to be of little or no value at preventing sexual offenses by registrants. The criminalization of a registrant from using social networking sites impinges on their free speech rights and creates barriers to successful reentry, while merely perpetuating a flawed get tough on crime mentality.”

In Monday’s opinion, Justice Kennedy asserted that, “by prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what, for many, are the principal sources 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.”

Pro-social networks contribute to lower incidences of re-offense.

The point is, as Justice Ginsberg remarked during February’s oral arguments, registrants are being “cut off from a very large part of the marketplace of ideas.” Justice Kennedy further remarked that people with convictions may “receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.”

Formerly incarcerated people depend on social media for communicating with loved ones, professional networking, and accessing news when they reintegrate with their communities. Research indicates stable housing and employment and pro-social support networks contribute to lower incidences of re-offense. Jason Pearl, a registrant himself, remarks, “This ruling will provide people on the registry equal and additional access to housing and job resources, as well as better help us connect and communicate with support groups so we can successfully reintegrate back into our communities.”

Other registrants also face difficulties in their efforts to advocate for themselves with a social media ban. Robin Vanderwall of the North Carolina chapter for the National Association for Rational Sexual Offense Laws reminds us that, “most Americans simply cannot imagine what it’s like to live in a “free world” that requires a constant vigilance about where one goes, who one’s with, or which forums are available to engage in public discourse. Often have been the times when I was unable to comment on a story about politics or culture simply because a Facebook account was required to access the forum. It’s been quite challenging to manage the affairs of an advocacy organization in the face of social media restrictions.”  Robin continues by challenging “any other leader in advocacy to successfully engage the public in the advancement of their causes without being able to use Twitter, Facebook, or any other social media flora.”

Perhaps the nebulous ‘frightening and high’ recidivism statistics are finally relaxing their grip.

Packingham is but one case recognizing the foolishness of poorly written and sweeping statutes lending little to public safety. Sex crime legislation, like the NC statute, is falsely premised on this notion of curbing “frightening and high” recidivism. While Packingham may have been struck down, incredibly stringent registration and notification requirements remain at the state-level with states are eager to enact more. The question remains then of how to reconcile the competing desires of reducing recidivism and increasing public safety without systematically excluding registrants from legitimate reforms. If recidivism is so “frightening and high,” why is our government actively working against rehabilitative efforts?

While Packingham is a “great victory” and allows registrants to be “admitted into the modern public square,” as Odell Huff of the Center for Sexual Justice comments, “it leaves the door open to aggressive police surveillance, even when our online activities have no potential for contact with minors.” Indeed, when is enough punishment enough? Once a registrant has served out their sentence, there must be a way to accept them back into the community.

Packingham illustrates the inherent problems with blanket restrictions. The government should be recognizing what Packingham implies; people on the registry have rights too. Yes, registrants must be held accountable for their criminal wrongdoing, but their conviction shouldn’t permanently exclude them from reintegrating back into their communities. Perhaps the nebulous “frightening and high” recidivism statistics are finally relaxing their grip, if only slightly. As Justice Kennedy wrote, “the nature of a revolution in thought can be that, in its early stages, even its participants may be unaware of it. And when awareness comes, they still may be unable to know or foresee where its changes lead.”