Free Speech for Sex Offenders

A hard case that makes good First Amendment law in the internet age. PHOTO: GETTY IMAGES

Unsympathetic plaintiffs serve a salutary purpose in the law, reminding politicians and the public that principles must govern even in unsavory circumstances. The Supreme Court rose to the occasion on Monday, ruling 8-0 that the First Amendment protects the right of even sex offenders to use social media.

Lester Packingham was 21 years old when he was convicted of statutory rape for having sex with a 13-year-old. In 2010 he posted a remark about a traffic ticket on Facebook and ran afoul of a North Carolina law that made it illegal for a sex offender “to access a 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.”

Packingham challenged the law as an infringement on his First Amendment right to use social media. The Justices agreed. Even if well intentioned, Justice Anthony Kennedy wrote for the majority, “the Government ‘may not suppress lawful speech as the means to suppress unlawful speech.’” Barring sex offenders from all social media would block them from a source of current events, potential employment and “speaking and listening in the modern public square” (Packingham v. North Carolina). 

In a concurrence, joined by Chief Justice John Roberts and Justice Clarence Thomas, Justice Samuel Alito agreed that the law was overbroad but cautioned that the majority’s opinion may go too far and discourage states from enacting more narrowly tailored laws protecting minors. Justice Alito mentioned teenage dating sites or sites “where minors communicate with each other about personal problems” as possible examples. But states must not “burden substantially more speech than is necessary to further the government’s legitimate interests,” he added.

Justice Kennedy’s opinion also notes that the decision “should not be interpreted as barring a State from enacting more specific laws than the one at issue. Specific criminal acts are not protected speech even if speech is the means for their commission.” The broad ban on using social media seems to have been North Carolina’s fatal mistake.

The internet poses new challenges for the law, but the High Court’s unanimous and robust defense of the First Amendment shows that traditional American rights still apply, as they should no matter the media platform.

Appeared in the June 21, 2017, print edition as ‘Free Speech for Sex Offenders Free Speech for Sex Offenders.’

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