This summer the Supreme Court decided that states cannot prevent or restrict sex offenders from utilizing social networking sites.
In an effort to limit sex offenders from interacting with potential victims, states such as North Carolina have enacted laws making it a felony for convicted sex offenders to access “commercial social networking” websites that have frequent traffic from under-aged users. Simply put, the law prevented convicted sex offenders from using websites such as Facebook, LinkedIn, Tumblr, Twitter, news sites permitting commenting, WebMd and more. While Pennsylvania does not have a state law prohibiting visits to such sites, most sex offenders in Pennsylvania are prohibited from accessing these sites via a condition of probation or parole.
In a unanimous decision on June 19, 2017, the Supreme Court ruled that laws regulating sex offender access to the sites infringe upon sex offenders’ constitutional rights. Under the First Amendment, freedom of speech is protected for everyone…including convicted and registered sex offenders. This issue was brought to the forefront when Lester Packingham, a convicted sex offender, was charged and convicted of a felony for violating North Carolina’s law prohibiting his use of social media websites. In 2010, Packingham posted on Facebook excitedly notifying his friends of a recent traffic court victory, when police noticed the post Packingham was arrested. However, Packingham and his legal team argued that there was no evidence that he had misused the website, posted inappropriately or interacted with minors.
Siding with Packingham, the Court’s decision explained that the law essentially suppressed lawful speech as a means of preventing potentially unlawful speech, a method that is unlawful in itself due to its infringement upon the First Amendment. Justice Kennedy, writing for the court, explained that social networking sites essentially functioned as a public space to exercise free speech. Further, the Court explained that by essentially seizing an individual’s entire ability to use social media sites, the law confiscated their ability to exercise key functions of their first amendments rights on these sites , such as learning, communication, and sharing their thoughts, beliefs and ideas. Since the internet and social media have grown to encompass and affect a major portion of modern life, including the news, interaction with legal adults like government officials and co-workers, these websites are now a key forum for engaging in Constitutionally protected activities.
When laws infringe upon Constitutional rights, it is settled that said law must meet “strict scrutiny”. Strict scrutiny means that the law must be enacted to further a compelling government interest and must be narrowly tailored to serve that interest. Simply put: the law must be put into place to specifically resolve or protect an extremely important government issue or interest , and there must be no less restrictive means of achieving that goal . Here, the Court found that the law was not the least restrictive means of preventing sex offenders from communicating with minors. As a result, the law was deemed overly broad and unconstitutional. For example, Justice Alito pointed out that the law would prevent offenders from using websites, such as ABC news and HealthLine, that are clearly outside of the intended objectives of the law.
While the Supreme Court’s ruling on this specific issue is a step towards protecting the constitutional rights of everyone (including possible sexual predators), it opens the door to many unanswered questions regarding the legality of regulating internet use in the modern day.