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June 19, 2017

SCOTUS declares unconstitutional North Carolina criminal law restricting sex offender access to social media

Today was a big day for the First Amendment in the US Supreme Court.  In addition to a notable First Amendment trademark ruling, the Court handed down a widely anticipated ruling in Packingham v. North Carolina, No. 15–1194 (S. Ct. June 19. 2017) (available here), dealing with a state law restricting internet access for sex offenders.  Here is how the Court's majority opinion in Packingham, authored by Justice Kennedy, gets started and a key closing paragraph:

In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter.  The question presented is whether that law is permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment....

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 websites 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.

The majority opinion in Packingham is quite short, but that does not mean it does not pack a punch.  In fact, Justice Alito authored an extended concurrence which was joined by the Chief Justice and Justice Thomas in order to lament some of the "undisciplined dicta" in Justice Kennedy's short majority opinion.  Here is how the concurrence begins:

The North Carolina statute at issue in this case was enacted to serve an interest of “surpassing importance.” New York v. Ferber, 458 U.S. 747, 757 (1982) — but it has a staggering reach.  It makes it a felony for a registered sex offender simply to visit a vast array of websites, including many that appear to provide no realistic opportunity for communications that could facilitate the abuse of children.  Because of the law’s extraordinary breadth, I agree with the Court that it violates the Free Speech Clause of the First Amendment.

I cannot join the opinion of the Court, however, because of its undisciplined dicta.  The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.  Ante, at 4–5.  And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers.  I am troubled by the implications of the Court’s unnecessary rhetoric.

(Though the issues in Packingham are no laughing matter, I am getting a giggle thinking about whether the phrase "undisciplined dicta" would better serve as my stage name if I was part of a nerdy rap band or just ought to be made into a rubber-stamp to help all my students add that commentary to course evaluations.)

June 19, 2017 at 10:26 AM | Permalink

Comments

Definitely lot of urls in the opinions.

I'm sympathetic with Alito's opinion in that the questions here are complicated, so it's best to take cases as they come, deciding this on the overbreadth of the regulation. But, it's a Kennedy opinion regarding free speech. "Undisciplined dicta" is almost obligatory.

Posted by: Joe | Jun 19, 2017 10:43:35 AM

Not an unexpected decision. With the current Supreme Court, if they grant cert on a First Amendment issue, it is almost guaranteed that the government will lose and the primary issue is the breadth of the opinion. (See, e.g., today's other decision in the trademark case.) In this case, both the majority and the concurrence are right on the main difference between them. The internet (particular social media sites) are, in many ways, similar to the public park or city street (other than being privately owned), and the Supreme Court should be cautious in setting rules for the internet given how quickly it is changing.

Posted by: tmm | Jun 19, 2017 11:07:23 AM

At least one person around here, however, did not think it was "almost guaranteed" to be unanimous. "Will not be 8-0. It will be 7-1 or 6-2. Alito will dissent, Thomas may dissent."

Posted by: Joe | Jun 19, 2017 12:00:00 PM

I am a criminal defense lawyer in Knoxville. Undisciplined dicta would make a great stage name for you.

Posted by: Doug Trant | Jun 19, 2017 12:11:26 PM

Two ironies:

Irony No. 1: Chief Justice of the Supreme Court John Roberts has decided against himself in a case that wouldn't even be considered had Supreme Court Attorney for the State John Roberts had asserted that sex offender registration would be nothing more intrusive on the sex offender than a pleasant Tuesday morning filling out a Price Club application.

Irony No. 2: The original plaintiff, Gerard Packinham, was busted for posting in Facebook, which as a private company, has a right to ban people as they see fit, so Packingham (and other registrants) may still be banned from Facebook despite the ruling. A lawsuit to protest this ban (perhaps based upon Facebook being de facto public presence based upon monopoly status) may be considered in the future, but for now, Facebook has every right to do what they want.

Posted by: Eric Knight | Jun 19, 2017 1:29:20 PM

The U.S. Constitution was given it's rightful due with this decision.

The truth is that the Adam Wash Act aka SORNA is a piece of legislation that paints a broad stroke over every RSO (registered sex offender.

Because of it's broad nature, people who have completed their sentence were caught up in a "second" punishment. If it was not retroactive, there would be no need for these law suits in the first place.

Lawmakers need to adhere to the Constitution, not how many votes they can get by making more bad laws.

Posted by: Book38 | Jun 19, 2017 1:32:50 PM

But keep in mind, Facebook is a private provider and they currently have a policy that bans ALL Registered Sex Offenders(RSO. It doesn’t matter if the conviction was a misdemeanor or a felony or if it was 2 months ago or 20 years ago.

Facebook is legally allowed to prohibit service to who they select, just like Six Flags prohibits all RSO’s.

So even with this U.S. Supreme Court decision remember in Virginia all nicknames and aliases plus all email addresses of RSO’s must be registered with the Virginia State Police (or face a felony) and then the VSP-IT Department sends those names and addresses to Facebook and if Facebook finds a match they close the account. If that Facebook account was owned by a VA RSO who is under VA-DOC Probation supervision that RSO will face a Probation violation (a felony) if social media or Internet access was prohibited.

So while this is a real win for arbitrary crimes against RSO’s it does not mean Facebook is going to allow RSO’s to join or not close their account.

Posted by: Mary Davye Devoy | Jun 19, 2017 1:34:12 PM

While certainly a step in the right direction, the opinion totally dodged the issue of the Court having flatly ignored and / or misconstrued the date on sex offender recidivism (e.g., "frightening and high" ) that have been used to justify these policies in the first place.

The concurrence doubles down on it, asserting that these policies are necessary, despite the paucity of evidence suggesting that they are, and blithely cite back to McKune v. Lile, which the Ellman article demonstrated was based on the claim of a treatment provider with no empirical basis whatsoever.

So, while it is the right result, I'm wondering how much longer the Supreme Court will simply ignore the issues that they have created (or, worse, as the concurrence seems to suggest, insist upon creating facts contrary to reality that will undoubtedly be used to perpetuate civil and human rights violations).

Posted by: Guy | Jun 19, 2017 2:09:31 PM

mary. I have proposed and may obtain a writ of mandamus, that Facebook be seized in civil forfeiture for the thousands of crimes committed on their platform.

Beyond that, it should be sued. I agree it is private property.

Say, you own a house. The property line is probably at the edge of the side walk, and may be in the middle of the street. The city may fine you for not removing the snow from your sidewalk. Someone slips on that sidewalk, you will be sued. I am suggesting Facebook is the biggest sidewalk in the world, where they have 1.5 billion invitees.

You may exclude people from your living room, even for wrongful reasons. You may not exclude people from your sidewalk, even people with a different viewpoint. So excluding people for their beliefs is prohibited if they come to the sidewalk at the proper time of day, and in the proper manner. I could not even exclude a sex offender from walking on my sidewalk. It says so in the sex registry homepage. Virginia prohibits even criticizing the sex offender, "Unlawful use of the information for purposes of intimidating or harassing another is prohibited and willful violation shall be punishable as a Class 1 misdemeanor." You can go to jail for insulting a sex offender.

So the exclusion by Facebook is from its sidewalk, not from its living room, and unlawful.

Posted by: David Behar | Jun 19, 2017 2:33:04 PM

David,

Most States "unlawful use of the Registry info" is a Felony.

I've tried to get VA to increase it from a misdemeanor and back in 2010 a Columnist from the Virginian Pilot criticized my proposal AND that it was even a misdemeanor because most likely the person who took the info committed an assault, harassment, arson or murder so she couldn't see ALSO charging them w/ misusing the Registry data too. Nice!

If you actually proceed w/ that writ please keep me or Douglas Berman updated on it.

I have refused to join Facebook for the last 9 years because of their prejudicial policy that has no appeal process.

Posted by: Mary Davye Devoy | Jun 19, 2017 2:46:50 PM

I said this one should be 8-0--I was right about that.

Posted by: federalist | Jun 19, 2017 2:59:39 PM

@Mary Davye Devoy

I refuse to join Faced-book because Mark Zuckerberg is a fraud.

Posted by: Huh? | Jun 19, 2017 9:20:54 PM

Perhaps we could use Snyder's 21 LESSONS FROM THE 20TH CENTURY in fighting these so-called "vitims' rights" laws like the various restrictions on former sex offenders.

At least five of Synder's 21 lessons are pertinent here:

First,don't be quick to obey a suspicious law. Ask yourself if Megan's Law, civil commitment, etc., conform to the fundamental values of our Constitution of innocent until proven guilty, jailing without charging, etc. You can simply refuse to divulge any information at all to police sex offender registries by reminding yourself that such laws enabled other dictators like Stalin and Hitler to widen their net beyond former sex offenders to include political dissidents, various ethnic and religious minorities, gays, organized labor leaders, etc. "Respectable" people must not give legitimacy to such laws that threaten our Constitution and the American way of life.

Second, defend an established institution such as our courts (part of first lesson). Don't allow unscrupulous politicians and prosecutors to "rape" our Constitution's Bill of Rights.

Third, observe ethics. Does forcing somebody who has completed their prison time to not have access to Internet and other rights, or the practice of holding inmates beyond their prison sentence sound ethical to you? If you have any true sense of ethics, you will say no to such laws and practices.

Fourth, look for certain code-wards that slimy politicians and prosecutors will use and abuse: sex predator; sex offender; pervert; etc. Do they use these words to genuinely protect the public safety and to respect due process? Ask yourselves this. Ask yourselves if these politicians are using sex crimes to cover up their own disgusting wrong doings. Maybe some of these politicians are themselves sex predators and are using these laws to frame innocent people and to cover up their own sordid crimes. After all, they think, who would suspect a "victim's rights" and "law 'n' order" politician of any reprehensible crimes? These types of politicians view the general public as ignorant fools as the Germans who fell for Hitler's burning of the Reichtag (sp.?) in 1933 to give himself dictatorial enabling powers.

Fifth and finally, speak out even though it understandably scares you. Yes, you could lose friends and even jeopardize your job, but you can remind yourself that if you remain silent, you and your friends will no longer have any more rights than a former sex offender if these politicians continue to get their way without public censure.

He has other lessons too. But, read his book to make yourselves aware of such seemingly innocuous laws like Megan's Law and recognize their sinister underbelly.

Posted by: william r. delzell | Jun 20, 2017 10:42:00 AM

What ever happened to accountability and responsibility? What is right for one is not always right for others. There are many laws for wrong doers but our leaders (Clinton's, Obama's, ect.) are above the Law!

Posted by: LC in Texas | Jun 20, 2017 11:06:08 AM

Good. That's one down and one more to go.

We hope that the Supreme Court will re-address their decision in 2003 that ex-post fact sex offemder registration was not unconstitutional because sex offender registration is not punishment.

This was absurd then, but is 100 times more absurd 14 years later, when it has become abundantly clear that every government entity from the small little towns in California to the states to the Federal government itself are using sex offender registration to punish people who have done their time and paid for their crime.

It is patently unConstitutional and we hope that a new case that addreses this issue soon comes before the Court.

Posted by: Stephen Douglas | Jun 20, 2017 11:09:13 AM

Can any of you bloggers site the recidivism rate of convicted child molesters who were not actually guilty in the first instance? Never happens right??

Parents Never use their children as pawns in a revenge scheme, to get back at the spouse or bf who dumped them for their selfish behavior.


Citizens rarely get charges they did not factually commit!

Posted by: Tim Lawver | Jun 23, 2017 4:32:57 PM

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