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Restricting Sex Offenders’ Access to Social Media Web Sites Violates First Amendment

Larry E. Holtz, Esq.

 “To foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”

In Packingham v. North Carolina, 137 S.Ct. 1730 (2017), the United States Supreme Court addressed a North Carolina statute making it a felony for any registered sex offender to gain access to “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.” The main question was whether the statute, which encompasses such commonplace social media Web sites as Facebook and Twitter, violates the First Amendment’s Free Speech Clause.

At the time of this appeal, the statute applied “to about 20,000 people in North Carolina and the State has prosecuted over 1,000 people for violating it.”

The petitioner in this case is a registered sex offender. In 2010, a state court dismissed a traffic ticket against him which caused him to post on his Facebook page, “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent…. Thanks JESUS!” He was then prosecuted for violating North Carolina law.

On appeal, the North Carolina Supreme Court held that the law was “constitutional in all respects,” finding it to be “carefully tailored…to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information about minors.” The United States Supreme Court disagreed and reversed, holding that the law violates the First Amendment’s Free Speech Clause.

“A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. [And even] in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.”

“While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace – the ‘vast democratic forums of the Internet’ in general…and social media in particular. Seven in ten American adults use at least one Internet social networking service.” Indeed, “[o]ne of the most popular of these sites is Facebook, the site used by [the] petitioner leading to his conviction in this case. According to sources cited to the Court in this case, Facebook has 1.79 billion active users. This is about three times the population of North America.”

“Social media offers ‘relatively unlimited, low cost capacity for communication of all kinds.’ ” For example, on Facebook, “users can debate religion and politics with their friends and neighbors or share vacation photos. On LinkedIn, users can look for work, advertise for employees or review tips on entrepreneurship. And, on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner.”

“While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far-reaching that courts must be conscious that what they say today might be obsolete tomorrow.”

“This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”

Clearly, the “sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.” And “it is clear that a legislature ‘may pass valid laws to protect children’ and other victims of sexual assault from abuse.” This case “should not be interpreted as barring a State from enacting more specific laws than the one at issue…. [I]t can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws which prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a Web site to gather information about a minor. Specific laws of that type must be the State’s first resort to ward off the serious harm that sexual crimes inflict.”

Nonetheless, the North Carolina statute at issue “cannot stand.” Such a statute must be “narrowly tailored to serve a significant governmental interest. . . . In other words, the law must not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.’ ”

This law, which applies broadly to social networking sites such as Facebook, LinkedIn and Twitter, “enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. By prohibiting sex offenders from using those Web sites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These Web sites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”

“In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of Web sites can be used even by persons who have completed their sentences. Even convicted criminals – and, in some instances, especially convicted criminals – might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.”

Accordingly, the North Carolina law “must be held invalid” as a violation of the First Amendment.

Larry E. Holtz has served as a Detective Sergeant with the Atlantic City, New Jersey, Police Department; a Deputy Attorney General for the state of New Jersey; and an Assistant County Prosecutor. Presently, Mr. Holtz is the Managing Editor of Blue360° Media, the largest U.S. provider of legal information that is solely focused on serving law enforcement.

Mr. Holtz is a certified police trainer and teaches on a regular basis. He is a member of the bar in New Jersey, Pennsylvania and the District of Columbia and is admitted to practice before the federal bar in the District of New Jersey and the Third Circuit.