In 2002 Lester Packingham pled guilty to statutory rape after having sex with a 13-year-old girl he claims he was dating. He was 21; he says he didn’t know the victim’s age at the time. Seven years after his conviction, with a clean record, Packingham signed up for a Facebook account.
It was through this account, in 2010, that he posted a message celebrating the dismissal of a traffic ticket. North Carolina police were notified, officers searched his home, and although they found no evidence that he was involved in the abuse of children or any sex crimes, he was placed on probation for commission of a felony and received a suspended sentence.
On Monday, the United States Supreme Court heard oral arguments in the case of Packingham v. North Carolina. The case hinges on whether a state law banning use of social media by registered sex offenders is unconstitutional under the First Amendment—a provision of the US Constitution that protects freedom of speech.
North Carolina officials contend the social-media ban is necessarily preventative, applying to websites and apps accessible to users under the age of 18. Sex offenders are already banned from places where children might congregate physically—schools, parks, etc.—and the internet presents a logical extension of such laws.
But Packingham argued the law unfairly prohibits conduct unrelated to its preventative function. He had no contact with children, and therefore any restriction of his communications is arbitrary, unconstitutional, and beyond the scope of punishment the crime calls for. He also argued that, today, social media has become such a key vehicle for communication that barring anyone outright from its use is tantamount to barring communication itself—an unsustainable concept under the First Amendment.
The court appeared to be somewhat amenable to this second line of reasoning. Justice Elena Kagan agreed that social-media sites like Facebook are “incredibly important parts” of the American political and religious landscapes. Their integrality goes beyond mere communicative function, Americans “structure their civil community life” around their use. Justice Ruth Bader Ginsburg added that barring sex offenders from social media outright would deprive them of “a very large part of the marketplace in ideas.”
North Carolina officials pushed back against the essentiality of social networking in modern life, arguing that the risks to minors of giving sex offenders access to social media outweigh the benefits offenders lose. North Carolina senior deputy attorney general Robert C. Montgomery painted sites like Facebook as instrumental to potential offenders who use them as channels for gathering information on targets; and that without access to such sites, they are not without equally effective sources of social information. He cited The New York Times, podcasts, and blogs unaffiliated with barred sites.
“I know there are people who think life was not possible without Twitter and Facebook,” he quipped to the courtroom.
Still, other justices voiced skepticism at the law’s overall effectiveness. Justice Sonia Sotomayor voiced concerns that too much of the state’s case was built on speculation. “Because this rule is not being applied to just people who have been found to have enticed a child on Facebook or some form of internet usage,” she said. “It’s being applied indiscriminately to people who have committed a sexual crime of statutory rape … what’s the inference that every sexual offender is going to use the internet to lure a child?”
Montgomery responded that the risk alone is sufficient to justify the law.
“But that might be true of every criminal today,” Sotomayor said, explaining that a bank robber might use the internet to find the location of a bank, or research its staff. If a crime is committed with assistance from internet resources, should the North Carolina law not apply to all such criminals? Sotomayor believes this renders the current statute unrealistic.
Montgomery argues that the statistics behind sex abuse originating online are too stark to ignore. “We know from studies that about 82% of online sex crimes against children, social networking websites were used to gain information about their likes and dislikes,” he said. Indeed, a 2006 study by the National Center for Missing and Exploited Children found that roughly 13% of underage internet users have received unwanted sexual solicitations online. A study in The Journal of Adolescent Health suggests those numbers continue to rise as the years progress and social-networking sites become even more ubiquitous in their usage.
The court has previously abridged purported First Amendment rights for the purpose of protecting vulnerable classes, i.e. children. Child pornography, for instance, is not considered constitutionally protected speech.
But the court appears reluctant to extend such logic to the case at hand, considering how substantially North Carolina’s case relies on speculation and statistical inference. “Here, you take a group of people who’ve done something wrong, been fully punished, and you’re saying that they might say something to somebody which would be dangerous,” said justice Stephen Breyer. “You can’t unless there is at least a clear and present danger.”
Montgomery pointed to a 1992 Tennessee case, Burson v. Freeman, in which the Supreme Court upheld a law banning political campaigning within 100 feet of polling places. The court ruled that such a ban served the state’s interest in protecting citizens’ right to vote without undue influence, and that the law in North Carolina parallels, protecting children’s right to use the internet without risk of lascivious advances.
Justice Anthony Kennedy was unconvinced by the analogy—noting first that the Burson rule applied to everyone, and did not restrict political speech outside the zone of exclusion. “If you cite Burson … I think you lose,” he said.
Kennedy being the fifth justice to express substantial skepticism toward North Carolina’s case, it seems likely the majority will rule in favor of Packingham.