Sex Offenders and a Facebook Free Speech Fight


Facebook A registered sex offender wants the U.S. Supreme Court to invalidate a North Carolina law that bans him from accessing Facebook and other social media sites, in Packingham v. North Carolina, No. 15-1194

Sixteen law professors, including former presidential candidate Lawrence Lessig and free speech guru Eugene Volokh, are supporting the First Amendment challenge in a friend of the court brief. 

Facebook access is integral to free speech, they argue. 

The high court needs to resolve a circuit split on what constitutes “ample alternative channels of communication” in free speech disputes, they say.  

The law, N.C. Gen. Stat. §14-202.5, makes it a felony for registered sex offenders to use social networking sites that allow minors to join. 

North Carolina’s ban doesn’t violate the First Amendment, the state’s supreme court held in State v. Packingham, 777 S.E.2d 738 (N.C. 2015). 

The court upheld the conviction of sex offender Lester Gerard Packingham—the petitioner here—for accessing Facebook. 

A dissenting justice said the statute not only bans access to Facebook, but also to “Google+, LinkedIn, Instagram, Reddit, and MySpace.” 

I guess someone still uses MySpace! 

Fans of Black Mirror (a British dystopian sci-fi series) might recall that Jon Hamm episode where a sex offender is legally “blocked” from seeing the faces of anyone on the planet. 

But the statute here “leaves available ample alternative channels of communication,” North Carolina’s high court held. 

For example, a sex offender wouldn’t violate the ban “by accessing the Paula Deen Network, a commercial social networking Web site that allows registered users to swap recipes” (like donut bread pudding!) “and discuss cooking techniques,” because it requires users to be at least 18 years old, the court said. 

Sex offenders can also access certain local news sites and sites like (a job-finding tool) and (photo sharing) without violating the statute, the court said. 

The professors raised their eyebrows at this list of alternatives. 

“This looks more like a parody of the ‘ample alternative channels’ analysis than a serious application,” the professors say. 

Far “fewer people are on the Paula Deen Network than on Facebook,” they assert. 

Sites “such as Facebook and Twitter have become a prominent and uniquely effective form of communication for which there is virtually no equivalent substitute,” they argue. 

They point to the 71 percent of online Americans who used Facebook as of 2014, and “almost 1.5 billion users worldwide.”  

Municipalities and politicians provide information through Facebook, meaning that North Carolina’s law cuts sex offenders out of civic life, the professors assert.  

A mere “recipe website” doesn’t cut it compared to the “personal, political, and religious content” available on Facebook, they say. 

Further, 28 percent of online U.S. adults use LinkedIn, which can significantly increase a sex offender’s chances of finding employment, they argue.  

The North Carolina Supreme Court’s ruling conflicts with decisions by the U.S. Courts of Appeals for the Sixth, Seventh and District of Columbia circuits, the professors say. 

Those circuits held that alternative channels of communication are “adequate” under the First Amendment “only if they let a speaker reach essentially the same audience” as the restricted channel, the amici brief says. 

Will the U.S. Supreme Court get involved in this Facebook fight?

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