Lester Packingham was convicted for having sex with a 13 year old when he was 21, and was thus required to register as a sex offender for 30 years or more. Eight years later, having completed his sentence, Packingham posted on Facebook to celebrate the dismissal of a traffic ticket. He was charged with, and eventually pled to, a felony under a North Carolina law that prohibits those on the registry from accessing “a commercial social networking Web site” if they know the site allows children to sign up.
The Supreme Court now strikes down the law as violating the First Amendment. Even assuming that the law is “content neutral” and thus subject only to intermediate scrutiny, the state hasn’t shown that it is narrowly tailored to advance a significant government interest. The majority opinion is driven by, first, the tremendous breadth of the statute’s prohibition (it arguably forbids a registrant to visit not only Facebook, Twitter, etc. but also Amazon.com, webmd.com, and Washingtonpost.com, slip op. at 7), and second, its view of the importance of the internet in modern life. It declares “cyberspace” the “most important place for the exchange of views.” Slip op. at 5. While the Court says “it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor,” the sweeping prophylactic prohibition here is simply unjustified. Slip op. at 7-8.
A three-justice concurrence, authored by Alito, takes issue with what it calls the “undisciplined dicta” of the majority. Essentially, the concurrence agrees that the statute sweeps far too broadly, but is leery of the majority’s embrace of the internet as the equivalent of the “town square” for free-speech purposes. The concurrence asserts that the differences between online and other types of communication–particularly the possibility of essentially unmonitorable participation by minors–may justify greater speech restrictions than would otherwise be allowable. (It also says, wrongly, that “when convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” Concurrence at 3. At least somebody noticed this falsehood though–the Washington Post fact checkers give Alito three Pinocchios.)
This decision may well have significant nationwide implications. Though Wisconsin has no equivalent restrictions to those struck down here, the majority’s full-throated declaration of the centrality of online communication to our society–and its resulting First Amendment protection–may cast doubt on other practices. In particular, any defense lawyer knows well that probationers and those on extended supervision are routinely forbidden to use the internet, or any computers at all. Though those under government supervision may be subject to greater restrictions than those who have completed their sentences, there often seems to be little specific justification for these bans. Perhaps some challenges are in order.