Packingham v. North Carolina: Sex Offenders, Facebook, and the First Amendment

“While 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.”[1]

So spoke Justice Kennedy in the Court’s recent decision in Packingham v. North Carolina, 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’s opinion held the statute to be an overbroad and unconstitutional violation of the First Amendment.[2] It also vindicated the rights of one of the more marginalized communities in American society: sex offenders.

The Statute

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] Because his crime constituted “an offense against a minor,” Packingham was required to register as a sex offender under the North Carolina Sex Offender Registry statute, N.C.G.S. §14-208.[4] 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]

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] These laws got even tougher in 2008, when the North Carolina legislature banned registered sex offenders from accessing commercial social networking web sites “where 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.”[7] Specifically, the law prohibits registrants from “accessing” 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] This statutory language was broad enough to apply to a wide variety of internet activities, including “purchasing 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.”[9]

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:

“Man 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!”[10]

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] Packingham was indicted and ultimately convicted for violating § 14-202.5.[12] 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]

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. “[E]ven where the defendant is correct,” the North Carolina Court wrote, “the Web offers numerous alternatives that provide the same or similar service that defendant could access,” since they only allowed users over age eighteen. For instance, the Court noted that Packingham could continue to access the Paula Deen Network, “a commercial social networking website that allows registered users to swap recipes and discuss cooking techniques.”[14]

The Supreme Court granted cert.

“A Prohibition Unprecedented in Scope”

The Supreme Court reversed. Applying intermediate scrutiny, Justice Kennedy’s majority opinion acknowledged the state’s compelling interest—protection of children from sexual abuse—and “content neutral” restriction that did not favor a particular viewpoint.[15] Nonetheless, the Court still found that the statute represented “a prohibition unprecedented in the scope of First Amendment speech it burdens.”[16] By essentially prohibiting sex offenders from accessing a wide variety of the internet’s functions, the North Carolina statute, “with one broad stroke,” singled out one specific group of people from accessing “the 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.”[17] 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]

Justice Alito, joined by Justices Roberts and Thomas, concurred separately. While he also found the law overbroad, he warned that the majority’s “undisciplined dicta” might be interpreted to prevent states from restricting dangerous predators from any internet sites.[19]

 “The Most Marginalized Group in Society”

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] The Court’s decision was not exactly unexpected; as observers of the argument noted, the Justices seemed skeptical of the state’s position during oral argument, with Justice Kagan wryly asking whether the state contended that “there was a Constitutional right to Snapchat, but not to Twitter.”[21] Still, at least some of the Justices seemed persuaded by North Carolina’s argument; Justice Alito, for instance, commented that sex offenders could still access podcasts, blogs, and the New York Times, even if they “think that life [is] not possible without Twitter or Facebook.”[22]

Additionally, while Packingham clearly indicated the Court’s 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 “probably the most marginalized group in society,”[23] and are subjected to lifelong restrictions that last far beyond the completion of their sentences.[24] After completing prison sentences, for instance, sex offenders can be constitutionally subjected to indefinite “civil commitment” in prison-like circumstances,[25] as well as travel restrictions so strict they are forced to live under bridges and in parking lots.[26] Sex offenders are subject to severe registration and notification requirements, including punishments for failing to notify authorities before and after they move.[27] Additionally, Circuit courts have upheld conditions of supervised parole that effectively ban sex offenders from using the internet.[28]

While it ruled in Packingham’s favor, the Packingham 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 “[t]here’s a high statistical inference that recidivism will follow one sexual crime to another,”[29] and Justice Alito’s concurrence asserted that “convicted sex offenders . . . are much more likely than any other type of offender to be rearrested for a new rape or assault.”[30] These assertions seem to justify society’s treatment of sex offenders, even though they are back up by little actual evidence. In fact, numerous studies have proven that the Supreme Court’s entire jurisprudence on sex offenders may be based on the incorrect assertion regarding recidivism.[31] A recent Department of Justice study found the rate of recidivism among sex offenders to be just under 3.5 percent—far from the high numbers the SCOTUS has cited in the past[32] (for instance, in 2002’s McKune v. Lile, [33] Justice Kennedy wrote that the recidivism rate for sex offenders is “frightening and high,” 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, which was not based on a study or any evidence other than the author’s opinion[34]). Further, the majority of rearrests for all offenders are not for new sex offenses, meaning that studies should be looking at recidivism rates generally, rather than solely for sexual offenses.[35] In fact, the rate of rearrest for the same crime is lower among sex offenders when compared to non-sex offenders.[36]

Perhaps Packingham 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 “business as usual” 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’s 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 recidivism rates.[37] Thus, although the Court declined to do so in Packingham, it may be time for the Supreme Court (and state legislatures) to evaluate its jurisprudence regarding offenders who commit sexual offenses.

 

[1]Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017).

[2] Id. at 1735.

[3] Id. at 1734.

[4] Id.

[5] See Perry Grossman, “First, They Came for the Sex Offenders…” Slate, available at 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.

[6] See, e.g., Cydney Joyner, “First Amendment Right to Facebook?” Campbell Law Observer (21 Nov. 2016), available at http://campbelllawobserver.com/first-amendment-right-to-facebook/.

[7] See N.C.G.S. § 14-202.5.

[8] Id.; see also Grossman, supra note 5.

[9] Brief of Electronic Frontier Foundation, Public Knowledge, and Center for Democracy & Technology as Amicus Curiae to Petitioner, 1.

[10] Packingham, 137 S. Ct. at 1734.

[11] Id.

[12] Id.

[13] Id.

[14] 777 S.E.2d 738, 747 (N.C. 2015).

[15] Id.

[16] Packingham, 137 S. Ct. at 1737.

[17] Id.

[18] Id.

[19] Packingham, 137 S. Ct. at 1738 (Alito, J., concurring).

[20] See, e.g., Bidish Sarma, “The Supreme Court’s Mixed Signals in Packingham.

[21] See, e.g., Amy Howe, “Argument Analysis: Justices Skeptical About Social Media Restrictions for Sex Offenders,” SCOTUSblog, available at http://www.scotusblog.com/2017/02/argument-analysis-justices-skeptical-social-media-restrictions-sex-offenders/; Grossman, supra note 5.

[22] Id.

[23]. Ilya Shapiro, “Even sex offenders have First Amendment rights,” The Washington Examiner, June 19, 2017, available at http://www.washingtonexaminer.com/even-sex-offenders-have-first-amendment-rights/article/2626429.

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

[25] See United States v. Comstock, 560 U.S. 126 (2010).

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

[27] Sarma, supra note 25.

[28] See, e.g., United States v. Gauld, 833 F.3d 941, 945–46 (8th Cir. 2016) (upholding a broad computer and internet ban as a condition of Gauld’s supervised release); United States v. Alvarez, 478 F.3d 864, 867 (8th Cir. 2007) (upholding the district court’s broad internet restriction as a condition of supervised release).

[29] Id.

[30] Packingham, 137 S. Ct. at 1739 (citing McKune v. Lile, 536 U.S. 24, 33 (2002)).

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

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

[33] McKune v. Lile, 536 U.S. 24, 33–34 (2002)

[34] See Feige, supra note 34.

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

[36] Id. 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.

[37] See Gina Puls, No Place to Call Home: Rethinking Residency Restrictions For Sex Offenders, 36 Boston College J L& Social Justice 319, 322 (2016).

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Kaitlyn Gerber is a 2L at Harvard Law School interested in criminal justice, forensic reform, and indigent defense. At HLS, she she is a student attorney at the Prison Legal Assistance Project, a research assistant in the Harvard Access to Justice Lab, and a board member of the American Constitution Society. As a 1L, she interned at the Capital Habeas Unit of the Federal Defender for the Eastern District of Pennsylvania; pior to law school, she worked in a cancer biology research lab at the Dana Farber Cancer Institute. Kaitlyn received her B.A. in Biology/Biochemistry from Carleton College.

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