Sex offender registration laws, limiting what sex offenders can and cannot do, are intended to protect the public. In today’s technological age, however, these restrictions can make it extremely difficult for sex offenders who completed their sentence to function in everyday society. We know what you’re thinking: “is inconveniencing people convicted of a sex crime really that big of a deal with all that is going on in the world?” The problem with this line of thought is registration laws may actually end up being counterproductive, if they make it too difficult for offenders to re-enter the work force or connect online with family members. For instance, imagine that you just got out of prison. How would you go about getting a job if you weren’t allowed legally to go on the internet? Do you think it would make it easier, or more difficult, to stay out of trouble without employment?
The United States Supreme Court recently accepted a relevant case on this subject: Packingham v. North Carolina. The Court will consider the constitutionality of uniformly banning all sex offenders from using social media. What follows is a brief case summary and an analysis of the fork-in-the-road First Amendment challenge that will be in front of the Court.
The year was 2010, and North Carolina resident Lester Packingham just beat a traffic ticket in court. Like many would do, he quickly shared the good news of his successful day on Facebook: “Man God is good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court costs, no nothing spent . . . Praise be to God, Wow! Thanks Jesus!” To Lester’s surprise, afterwards, he was arrested for posting this comment. North Carolina police were not upset that Lester appeared to be bragging online about his big day in court. They were enforcing a state law that prohibited people like him from using any social media websites that allow minors to have accounts.
In 2002, when he was 21, Lester pleaded guilty to the charge of taking indecent liberties with a minor. As a first-time offender, he was sentenced to ten to twelve months and two years of probation. In 2008, six years after his conviction, the North Carolina legislature passed a new law prohibiting the use of social networking sites by registered sex offenders. The law made accessing a social networking website open to minors a felony. This law applied to sex offenders in North Carolina, regardless of whether or not their past conviction involved children or the internet, and regardless of how long ago their conviction occurred.
Needless to say, the evidence was pretty clear that Lester had violated the law. A police officer who was investigating whether sex offenders were using social networking sites found his Facebook profile page, and reported it. A jury found him guilty in May 2012, and he was given a suspended sentence and placed on probation.
Lester’s lawyers, however, appealed the case, on the grounds that the law violated the First Amendment. First Amendment analysis boils down to one simple question with two different paths: what level of “scrutiny” will the courts apply? How high will the government’s burden be to demonstrate that their law complies with the Constitution and the First Amendment? If a law targets “speech” it will be forced to reckon with “strict scrutiny” which is the highest test the government has to face. Under “strict scrutiny” the government must show that the regulation is “absolutely necessary to serve a compelling interest” and is “narrowly drawn” to achieve that end. The test is almost always fatal to the government. As we said previously, the North Carolina law applies to all sex offenders regardless of whether their crime involved minors or the internet. This means the law is not “narrowly drawn,” and under this test, the law would not survive.
However, if a law merely targets “conduct” with only an incidental effect on speech, a much easier test is applied which the government can ace. In that scenario, the government would only have to prove that it is a content neutral regulation that promotes an important government interest, and the interest wouldn’t be achieved as effectively without it. Under this more forgiving test, the law would survive, because protecting the public from sex offenders is an important government interest, and it’s easier to do it with a law like this. This is the test the North Carolina Supreme Court applied.
So it all comes down to what test is applied. Will strict scrutiny win the day? It is difficult to see the Roberts Court, which has been so protective of First Amendment rights, taking up this case only to allow the law to stand. The North Carolina Supreme Court’s reversal was based on the idea that accessing websites such as Facebook or Twitter isn’t really speech, but “conduct” that is subject to stricter regulations. But, as we believe the Supreme Court will recognize, the whole point of accessing websites such as these is to take part in protected speech. A helpful way to think of it is like this: how much of a restriction on your Facebook use would you consider it to be if you couldn’t communicate in any way with another person on it? Do you use social media just to passively scroll through, or do you use it to connect with others or express your opinions? The law clearly targets expressive activity, and this case is an important one to watch for it will give the Court a perfect opportunity to further clarify the distinction between conduct and speech in our increasingly technological world.
Matthew B. Trevor recently graduated summa cum laude from William Mitchell College of Law. There, he was an Assistant Editor on Law Review; participated in Rosalie E. Wahl Moot Court; received awards for the highest grade in his class for Criminal Law and Constitutional Law; and was a William Mitchell Fellow. He also clerked for the Washington County Public Defender’s Office, the Appellate Office for the Minnesota Public Defender, and the United States Attorney’s Office. Criminal Defense Lawyer Minneapolis MN; Federal Criminal Defense Lawyers St. Paul MN; and Minnesota Criminal Lawyer.