In Packingham v. North Carolina, the United States Supreme Court invalidated a North Carolina statute prohibiting certain social media use by registered sex offenders. The decision is widely regarded as the Court’s acknowledgment that social media use is a practical necessity in 21st-century American society as well as a platform for the free expression protected by the First Amendment.
At the time of his sex offense in 2002, Lester Packingham was a 21-year-old college student who was convicted of indecent liberties with a child — he had sex with a 13-year-old girl. Packingham had no prior criminal record, and received a suspended sentence of 10 to 12 months of incarceration with a 24-month period of supervised release. He was, however, required to register as a sex offender for at least ten years.
In 2008, about halfway through Packingham’s minimum registration period, North Carolina enacted its social media restrictions for sex offenders. The new statute made it a felony for a registered sex offender, if aware that minors might use them as well, to use social media websites with the following characteristics: 1) generating revenue via advertising or otherwise, 2) facilitating contact between users, 3) allowing users to create profiles, and 4) providing ways for users to communicate with each other through message boards, chatrooms, e-mail, or other means. More than 1,100 people have been charged with violating this statute in North Carolina.
It is not known whether Packingham was specifically advised of this legislative action. He had completed his probation several years previously, and he apparently led his life as a law-abiding citizen until he was stopped and cited for a traffic violation in 2010. When he showed up for the hearing, he discovered to his delight that the charge had already been dismissed. So, there was nothing else to do but post this triumph on Facebook!
Unbeknownst to Packingham, a local police officer was monitoring the social media accounts of registered sex offenders and obtained a warrant to search Packingham’s computer. It was discovered that Packingham was in at least technical violation of North Carolina’s new sex offender social media restrictions, and he was indicted and charged accordingly.
Packingham challenged the prosecution on First Amendment grounds as an unreasonable restriction on his free speech rights. The trial court rejected the challenge, the state court of appeals upheld it, and the North Carolina supreme court rejected the First Amendment challenge again, upholding the state law as “constitutional in all respects.” Packingham was ultimately convicted and given a suspended sentence. The U.S. Supreme Court granted his petition for review, and unanimously struck down the North Carolina statute.
Justice Kennedy wrote the five-justice majority opinion, which essentially points out that so many websites offer the features North Carolina prohibits for sex offenders that the statute represented an unreasonable restriction on free expression rights. Justice Kennedy observed that the statute would prohibit a registered sex offender from visiting Amazon, WebMD, or the Washington Post online. The majority opinion specifically protected the ability of states to restrict sex offender Internet use more narrowly, thereby balancing the state interest in protecting minors with the interest of past offenders in legitimate Internet use.
One of the more interesting aspects of the Packingham decision is found in Justice Alito’s concurring opinion, joined by Chief Justice Roberts and Justice Thomas. While Justice Alito agreed with the result, he criticized the majority for its “undisciplined dicta” in the form of “musings that seem to equate the entirety of the internet with public streets and parks.” Then Justice Alito indulged in some undisciplined dicta of his own:
Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” (Citations omitted.)
This is simply not true, according to the Washington Post Fact Checker. Sex offenders are actually among the least likely felons to reoffend with a similar crime. Only 5.6 percent of those convicted of rape or sexual assault were arrested for another sex offense within five years after release, according to a 2014 Bureau of Justice Statistics report. Far more likely candidates for recidivism on similar charges are persons convicted of drug crimes (51.2 percent), larceny or car theft (41.4 percent) assault (34.4 percent), or fraud or forgery (29.7 percent).
If Justice Alito had used his own unrestricted access to the Internet to find this data, perhaps he would not have made such an undisciplined and ill-informed statement in his concurring opinion.