By: Davina Seoparsan
The Case
In 2002, Lester Packingham was convicted of taking indecent liberties with a minor.[1] Lester was sentenced to a year of imprisonment with an additional 24 months of supervised release.[2] Upon his release, he was told to stay away from the minor involved in his case, but no further special instructions were given other than the contact ban.[3] In 2010, Lester Packingham was arrested for a violation of North Carolina’s law regarding sex offenders and social media.[4] The reason for his arrest? A Facebook post thanking god and celebrating having a parking ticket dismissed.[5] At the time, a North Carolina law prohibited registered sex offenders from using various social media sites such as Snapchat, Twitter, Instagram and LinkedIn.[6] The social media forms that were banned were mainly those which allowed children under 18 to create accounts. Lester’s case overturned that law.[7]
The Supreme Court of the United States reviewed the case and had two main reasons for overturning the law. Firstly, the Supreme Court discussed the important role that the internet plays in everyday life and determined that the internet is now included in the process of citizens exercising their First Amendment rights.[8] Secondly, the Court was unconvinced by the state’s argument that internet and social media restriction for sex offenders was absolutely necessary to protect innocent children and future potential victims.[9] The court did not challenge the assertion that registered sex offenders pose a risk to children and other individuals, rather, it rejected the notion that broadly banning access to certain social media platforms directly served the purpose of protecting victims.[10]
The Controversy
The debate regarding whether sex offenders should have the ability to access social media has been extremely controversial. On one hand, social media is considered fundamental to modern society. As Justice Kennedy noted, social networking sites are “the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the fact realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”[11] One of the (often forgotten) objectives of the criminal justice system is rehabilitation: an attempt to transform the offender into a valuable member of the general population once their time served in prison is complete.[12] Sex offenders already face restrictions on many aspects of life, including where they can live and what kind of environments, they can work in.[13] By not allowing sex offenders to have access to certain websites and platforms, their ability to re-enter into society is greatly impacted. Research suggests that feelings of isolation can prevent sex offenders from reentry, which in turns increases their likelihood of reoffending.[14]
On the other hand, sex offenses are considered especially heinous in society.[15] Logic indicates that those who commit especially heinous crimes should face stronger restrictions than those who have been convicted of other types of crimes. It is clear why advocates for sex offender restrictions have focused on social media; between dating apps, picture platforms and the amount of information that many have posted online, a sexual predator not only has every access to a large amount of information, but also has a way to communicate with any potential target they desire.[16] Crimes committed through the use of dating apps and other social media are not uncommon, and include rape, kidnapping, sex trafficking and even murder.[17] Those who support sex offender restrictions argue that by imposing these restrictions and banning sex offenders from access to these sites, many of these crimes will be prevented.
The Consensus
Though it might seem that the decision in Packingham was mainly supporting the anti-restriction advocates, the law has provided ways to limit sex offenders without infringing on their First Amendment rights.[18] That being said, a court can still impose social media, or even more broadly, internet, restrictions as a part of an individual’s probation.[19] Some states have enacted narrowly tailored laws in order to restrict and monitor the online activities of registered sex offenders without infringing on their rights. For example, there is a California Bill that was passed in 2016 which requires sex offenders to disclose their internet identifiers, including usernames, emails, and any names they use to send direct messages.[20] Pro-restriction advocates have recommended that states adopt laws requiring dating apps to do background checks on users to prevent sex offenders from utilizing the dating app, but few have chosen to act on this due to privacy concerns.[21] As modern technology develops and the amount of information that is accessible online expands, it is likely that we can expect a new wave of laws that aim towards protecting the youth without infringing on the First Amendment rights of sex offenders.
[1] State v. Packingham, 748 S.E.2d 146 (N.C. Ct. App. 2013).
[2] Id at 149. See also Packingham v. North Carolina, 137 S. Ct. 1730 (2017).
[3] Id.
[4] State v. Packingham, 748 S.E.2d 149 (N.C. Ct. App. 2013).
[5] Id.
[6] Id at 148.
[7] See Packingham v. North Carolina, 137 S. Ct. 1730 (2017).
[8] Id at 1735.
[9] Id at 1737.
[10] Id.
[11] Id 1732.
[12] See Edward L. Rubin, The Inevitability of Rehabilitation, 19 U. Minn. L. Rev. 343 (2001).
[13] See Samantha Olson, Moving the Sex Offender Registry to a Risk of Re-offense Model, 96 Oregon l. Rev. 314 (2017).
[14] Id at 321.
[15] See The Justice System, bureau of justice statistics, https://www.bjs.gov/content/justsys.cfm. See generally id at 328; Law and Order: Special Victims Unit: Title (NBC television broadcast).
[16] See Sam A. Wilcox, Should Registered Sex Offenders be Banned from Social Media?, 48 am. psychol. ass’n. 27 (2017).
[17] See Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (“The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts…”). See generally Child Sexual Abuse Statistics, the national center for victims of crime, https://victimsofcrime.org/media/reporting-on-child-sexual-abuse/child-sexual-abuse-statistics.
[18] See id at 1737 (“Though the issue is not before the Court, it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.”).
[19] Id at 1738.
[20] See generally S.B. No. 448 (Ca. 2016).
[21] Wilcox, supra note 15.
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