Sex Offenders Can Access Facebook, High Court Says

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By Jessica DaSilva

Sex offenders who have already served their sentences enjoy a First Amendment right to use social networking websites like Facebook or Twitter, according to a June 19 ruling from the U.S. Supreme Court ( Packingham v. North Carolina , 2017 BL 208397, U.S., No. 15-1194, 6/19/17 ).

The court, in an 8-0 decision, struck down a North Carolina law that stopped former offenders from accessing “a commercial social networking website where [he] knows that the site permits minor children to become members or to create or maintain personal profiles.”

There is little chance of the decision having an impact, said Steven Schwinn, a constitutional law professor at The John Marshall Law School, Chicago.

“This state’s statute was so broad and free-wheeling, it would have been hard for the court to uphold it,” Schwinn told Bloomberg BNA. “This was low-hanging fruit for the court.”

But Ira Ellman, a law professor at Arizona State University Sandra Day O’Connor College of Law, Phoenix, said one line in the majority opinion could be an indication that the court is going to grant certiorari in a case that deals with other types of lifestyle restrictions for former offenders on the sex offender registry: Snyder v. Does.

The Internet as a Park?

North Carolina, in its brief and oral arguments, tried to paint its law as narrow and leaving alternative means available. The high court disagreed.

It noted the North Carolina Court of Appeals upheld the law because even if the petitioner couldn’t access Facebook, he could access “adequate alternative means of communication” like “the Paula Deen Network.”

However, both the majority and concurring opinions pointed out that under the requirements of the law, former sex offenders couldn’t access popular websites like Amazon.com, The Washington Post, or WebMD.

“By prohibiting sex offenders from using those websites, 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,” wrote Justice Anthony Kennedy for the majority.

In reaching its conclusion, the majority weighed the importance of free speech in the rapidly evolving digital age, which it recognized it could not predict.

“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,” Kennedy wrote. “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.”

Justice Samuel A. Alito Jr., concurring, expressed concern over the wide-reaching language of the majority opinion, calling its observations “undisciplined.”

“The court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks,” Alito wrote.

Putting the Internet on par with public spaces could negatively affect states’ abilities to regulate Internet usage in lawful ways, such as preventing convicted sex offenders from registering on teen dating websites, Alito wrote.

Chief Justice John G. Roberts and Justice Clarence Thomas joined Alito’s opinion. Justice Neil M. Gorsuch did not participate in the decision, as he took his seat on the court after it heard oral argument.

‘Kennedy-esque’

It’s not “immediately apparent” how the case could affect other First Amendment and technology claims, considering how “sweeping and broad” North Carolina’s law was, Schwinn said.

Despite Alito’s concerns, the majority opinion had a paragraph that provided sufficient guidance to states on how it could successfully police solicitation of minors, Schwinn said.

In it, the court advises states to keep regulation focused on behaviors associated with gathering information on minors for the purpose of solicitation.

“The ruling was Kennedy-esque but I don’t think that’s problematic here,” he said. The opinion was “kind of abstract, sometimes roaming, maybe—as the concurrence suggests—somewhat broader than necessary.”

Ultimately, this case didn’t have enough details to impact First Amendment and technology law, he said. What will matter is a future case where a state tries to follow the court’s guidance and limit communications with a minor in a way that is a more tailored way to get after the behavior they’re trying to criminalize, he said.

A Breadcrumb?

Despite the focus on First Amendment rights, a single line in the ruling suggests the court will likely take up a case involving other types of lifestyle restrictions on sex offenders who have already served their sentences, Ellman said.

Parenthetically, Kennedy wrote: “Of importance, the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court.”

The word “troubling” indicates that the court might be willing to grant certiorari on the issue of sex offender restrictions, Ellman said.

The Supreme Court recently asked the Solicitor General to weigh in on Snyder v. Does, a case that Michigan asked the court to review. At issue are legal restrictions for those on the sex offender registry, such as limitations on where former offenders can live, Ellman said. Michigan’s petition is currently pending before the court.

The U.S. Court of Appeals for the Sixth Circuit ultimately found the laws were unconstitutionally applied to the convicted sex offenders who had already served their sentences who had served their sentences and been placed on the sex offender registry before recent and more restrictive amendments had been passed. Such restrictions in general were punitive, the court said in a lengthy opinion.

Michigan’s sex offender registry “brands registrants as moral lepers solely on the basis of a prior conviction,” the Sixth Circuit wrote. “It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live.”

In going into such detail, the Sixth Circuit essentially invited a case generally challenging the state sex offender restrictions, Ellman said.

Kennedy’s line could also suggest how the court might ultimately rule on sex offender registries—especially in light of the court’s request for the Solicitor General to brief the issue, Ellman said.

Starting with Romer v. Evans in 1996, Kennedy wrote a series of decisions hinting at the eventual recognition of same-sex marriage in his 2015 opinion in Obergefell v. Hodges.

Along the way he wrote Lawrence v. Texas in 2003, which overturned the 1986 ruling that upheld a ban on same-sex intercourse in Bowers v. Hardwick, and United States v. Windsor in 2013, which overturned part of the federal Defense of Marriage Act as unconstitutional.

If Kennedy did it before, it’s possible he could be doing it again, Ellman said.

“If they say these prohibitions that apply to everyone on the registry can’t be justified, then maybe the entire registry can’t be justified,” Ellman said. “There are now lots of reasons to think they will hear Snyder v. Does.”

To contact the reporter on this story: Jessica DaSilva in Washington at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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