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Sex Offenders Have First Amendment Right to Social Media

By Christopher Coble, Esq. on June 20, 2017 | Last updated on March 21, 2019

Convicted sex offenders are subject to a variety of conditions on their probation or parole. Every state has a mandatory sex offender registry requirement, although time on the registry may vary. And courts have even allowed lifetime GPS monitoring of sex offenders. All of which is to say that the government and law enforcement have a lot of leeway when deciding how to punish and monitor sex offenders.

But North Carolina took that a step too far, apparently. The Supreme Court ruled yesterday that a state law banning registered sex offenders from social media sites like Facebook was unconstitutional.

Social Speech

In 2010, Lester Packingham Jr. took to Facebook to thank the lord for a positive experience in traffic court:

"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!"

The only problem? Packingham had pleaded guilty in 2002 to taking indecent liberties with a child following a sexual relationship he had with a 13-year-old girl while he was 21. Packingham was required to register as a sex offender, and a North Carolina ordinance prohibited him from accessing any "commercial social networking Web site 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."

It just so happened that a Durham Police Department officer was investigating registered sex offenders who were thought to be violating the law at the time, and Packingham was indicted, convicted, and given a suspended prison sentence for his Facebook post. He challenged the charge on First Amendment grounds, all the way to the Supreme Court.

Even Convicted Criminals

The Court sided with Packingham, announcing emphatically, "A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more." Writing for the unanimous Court, Justice Anthony Kennedy asserted that:

[T]o foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals -- and in some instances especially convicted criminals -- might 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.

Therefore, "a State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture."

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