Packingham v. North Carolina is a First Amendment test case in the age of Trump.

Why SCOTUS Must Rule to Defend the First Amendment Rights of Sex Offenders

Why SCOTUS Must Rule to Defend the First Amendment Rights of Sex Offenders

The law, lawyers, and the court.
March 1 2017 12:00 PM

First, They Came for the Sex Offenders …

We must speak up for the rights of those on the fringes of society. The Supreme Court’s ruling on sex offenders’ First Amendment rights will signal how much protection we can all expect.

Illustration by Natalie Matthews-Ramo. Icon by Thinkstock.

Illustration by Natalie Matthews-Ramo. Icon by Thinkstock.

On April 27, 2010, Lester Gerard Packingham Jr. posted a Facebook status:

“Man God is Good! How about I got so much favor they dismiss the ticket before court even started. No fine, No court costs, no nothing spent. . . . Praise be to GOD, WOW! Thanks JESUS!”
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This post appears entirely ordinary—something that might show up on your own Facebook feed without raising any questions. But when Durham, North Carolina’s Police Cpl. Brian Schnee discovered it, he applied for and obtained a search warrant for Packingham’s home. A few months later, Packingham was indicted on a felony charge and in May 2012, he was convicted.

The felony charge was not for the traffic ticket he’d avoided—it was for posting about it. In 2002, when he was a 21-year-old college student, Packingham was indicted on two counts of statutory rape for having sex with a 13-year-old girl that he said he was dating without knowing her age. He was convicted on one lesser count—“taking indecent liberties with a minor.” Packingham, who had no prior criminal record, received the shortest allowable sentence (10–12 months), though the judge suspended that in favor of 24 months of supervised release, which Packingham completed without incident. Packingham was also required to register as a sex offender. By the time he celebrated the dismissal of his traffic ticket, Packingham had been not in prison, on parole, or on probation for several years.

He was, of course, still required to register as a sex offender. In 2008, North Carolina made it a felony for any person on the state’s sex offender registry to “access” any “commercial social networking website” that the person “knows” does not restrict usage to legal adults. Although the state claims that this law, NCGS §14-202.5, is intended to prevent sexual predators from gathering information about minors, Section 202.5 and related restrictions go far beyond that ostensible purpose and instead, as Slate’s Mark Joseph Stern has observed, work to drive an unpopular and politically powerless group of people out of public life altogether. The approximately 20,000 people on North Carolina’s sex offender registry include people who have been convicted of offenses that do not involve minors or the internet as well as people who, like Packingham, have otherwise served their sentences. But the law does not take this into account. If you’re on the list, and you’re also on Facebook, you can be charged with a felony. There have been more than 1,000 convictions under this law.

The phrase “commercial social networking web sites” likely telegraphs sites like Facebook, Twitter, Instagram, and YouTube, but the law also prohibits a registrant from “accessing” any site that (1) “derives revenue from advertising”; (2) has functions that “facilitate the social introduction of two or more people”; (3) allows users “to create personal profiles, e-mail accounts, or post information on message boards”; and (4) permits access to minors. The result is that virtually any website that has a comment or review function and allows minors to use it may be off limits. Under this definition, a registrant could commit a felony by checking basketball scores on ESPN.com, looking up cold remedies on WebMD, posting a résumé on LinkedIn, or listening to Chopin nocturnes on Pandora. A registrant could be sent to prison for simply trying to read this article, regardless of whether she attempts to engage any other readers in discussion, on the merits of North Carolina’s efforts to banish registered sex offenders from public life—a topic on which the public would likely benefit from receiving the views of registered sex offenders. The class of prohibited sites is so broad and vague that when Packingham’s arresting officer was cross-examined as to how he might advise a confused registrant, Cpl. Schnee testified: “If you have a question about whether you can or can’t do something, don’t do it. The best way for them—for somebody not to get in trouble is to not do something.” In other words, perhaps it’s better for registered sex offenders to avoid the internet altogether.

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The Supreme Court recognized the importance of the internet to public life more than 20 years ago. (If you want to enjoy waves of nostalgia, read Justice John Paul Stevens’ description of the internet in a 1997 case, Reno v. ACLU, which includes marvelous references to “computer coffee shops,” “mail exploders,” Prodigy and CompuServe, and “newsgroups.”). And even if the ban were just confined to sites commonly thought of as “commercial social networking sites,” such as Facebook, Twitter, and YouTube, the law would exclude registrants from engaging in some of the most important political conversations and social movements in the world today—think Black Lives Matter, the Tea Party, Indivisible, and the Standing Rock protests (not to mention the vital political communications coming from @realdonaldtrump.)

The parties to this case have not disputed that North Carolina is pursuing a legitimate purpose in protecting children from sexual predators trolling the internet. Nor have they disputed that the state’s internet restriction is “content-neutral”—the law prohibits access to websites without regard to the particular ideas or viewpoints expressed. But to the extent the state infringes on the expressive rights of people affected by these protective measures, the First Amendment requires that the law be “narrowly tailored” to achieve the state’s purpose. It cannot bar a substantial amount of expression unrelated to the protection of minors from sexual predation.

Packingham made an unsuccessful challenge to the validity of Section 202.5 before his trial and was subsequently convicted by a jury of criminally accessing Facebook. But in August 2013, the North Carolina Court of Appeals overturned his conviction on First Amendment grounds, ruling that the law swept far too broadly. It noted that the internet restriction applies regardless of whether an offender had been convicted of a sexual offense involving a minor, previously used a social networking site to target children, or presented a continuing threat of harm to minors. Equally important, the Court of Appeals held that the internet restriction was vague and overbroad, observing that registered sex offenders “may be prohibited from conducting a ‘Google’ search, purchasing items on Amazon.com, or accessing a plethora of Web sites unrelated to online communication with minors.” To borrow an analogy from Justice Stevens’ opinion in Reno, prohibiting all registrants any access to vast portions of the internet because there’s a threat that a subset of dangerous registrants might use that access improperly “burn[s] down the house to roast a pig.”

But in November 2015, the North Carolina Supreme Court disagreed. It held Section 202.5 “constitutional in all respects.”

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The U.S. Supreme Court issued its decision to review this case on Oct. 8—which now feels like a lifetime ago—under circumstances generally indicating an intent to strike down Section 202.5. The tone of Monday’s oral argument revealed that in the interceding months, the merits of North Carolina’s case have not improved. In fact, as Justice Elena Kagan observed, access to commercial social networking sites may now be nothing less than a civic imperative, given the president’s preference for communicating with the public over Twitter.

The justices also worked over the state’s counsel on the vaguely worded statute and its confusing exceptions. At one point, Kagan asked Robert Montgomery, counsel for North Carolina: “[S]o you mean that there’s a constitutional right to use Snapchat, but not to use Twitter?” Justice Sonia Sotomayor also challenged the flimsy evidentiary basis for applying the social networking restriction to all sex offenders, noting that generalized evidence that some sex offenders may be prone to recidivism under some circumstances does not justify an inference that “every sexual offender is going to use the internet to lure a child.”

Looming in the background of the court’s consideration of this case are the Trump administration’s recent attacks on the First Amendment, minority rights, judicial independence, and the rule of law itself. Though it’s a much different First Amendment context, President Trump’s executive order restricting travel by Muslims from seven countries is also a grossly overbroad restriction on a politically vulnerable minority that was enacted thanks to fearmongering, not evidence. As lower federal courts enjoined the executive order, President Trump attacked the legitimacy of those judges—who then received threats to their safety—while members of his administration implied that the courts had no right to question the president’s judgment on matters of national security. Factor in Trump’s claim that he was championing free speech when he threatened to withhold federal funds from UC–Berkeley after it canceled an event featuring Milo Yiannopoulos, and his promise to “open up our libel laws” to permit more lawsuits against the press, and it’s clear that the president’s guiding mode of constitutional interpretation is not originalism, but solipsism. The president thinks the First Amendment protects speech and beliefs he likes, but not those he doesn’t. This case thus provides an opportunity for the Supreme Court to brace the judiciary for its upcoming battles with the Trump administration and to provide a nervous country with some assurance that the protections of the First Amendment remain as robust as ever and available to all.

Go to any protest these days and you’re sure to see a sign invoking the words of Martin Niemöller, a Lutheran pastor who opposed the Nazis during the Second World War by famously stating, “First they came for the Socialists, and I did not speak out—Because I was not a Socialist.” The message is simple but powerful: Speak up for the rights of those on the margins of society or you might yourself on the other side.

Court battles over the First Amendment have been frequently fought on behalf of unpopular groups as a means of preventing encroachment upon the rights of the rest. Justice Stephen Breyer recalled this heritage during argument when he pointed to criminal laws directed at prohibiting communists from advocating for the overthrow of the United States government that had been struck down 60 years ago. It is difficult to imagine a less popular group than registered sex offenders. But speaking up for their rights now is critical at a time when the administration has shown its eagerness to brand people with whom it disagrees as “enemies” and to strip rights from politically vulnerable groups like transgender students. And it has the fringe benefit of being a good strategy for making sure “they” don’t come for you too.

 Disclosure: The author of this post is also one of the authors of an amicus brief filed in this case on behalf of the Electronic Frontier Foundation, Public Knowledge, and Center for Democracy & Technology in support of Packingham.

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Perry Grossman is a civil rights attorney in New York City.