The US Supreme Court looks set to kill off a North Carolina law that prevents sex offenders from accessing social media sites, for being unconstitutional.
During oral arguments [PDF] on Monday morning, a majority of the Justices appeared to agree that the law infringes on people's First Amendment rights in a way that is not justifiable. At the same time, the case put forward for retaining the law received little support.
The case concerns Lester Packingham, who was indicted back in 2002 for having sex with a 13-year-old. He was convicted of taking "indecent liberties of a minor." His sentence was suspended and he was ordered to register as a sex offender.
Under North Carolina law, Packingham was banned from accessing any "commercial social networking websites" if he knows that it allows children to set up accounts. In effect, that means he is not allowed to use Facebook, Twitter or similar services but can still use chatrooms, photo-sharing sites and websites like The New York Times.
However in April 2010, Packingham posted a celebratory message on Facebook about a traffic ticket that had just been dismissed – and it was noticed by a local police officer who was specifically searching Facebook to see whether any registered sex offenders were on the service.
He searched for Lester Packingham, found his father, and then went through his posts, eventually finding Lester who was registered under a pseudonym. The same cop found another six registered sex offenders in the same way during the same session.
Packingham was charged but fought it in court by arguing his First Amendment rights were being infringed. He lost and appealed. The appeals court overturned the conviction, but then the state's supreme court reinstated it. And so it ended up at the Supreme Court.
The state's argument basically boils down to three things:
- People's rights are often infringed (even First Amendment rights) when it comes to certain types of criminal convictions. Sex offenders, for example, are not allowed within a certain distance of schools, or to own guns, in some states.
- The law does not infringe on First Amendment/free speech rights because there are plenty of other outlets where he can communicate and express himself.
- Sex offenders use social media sites to build up personal information about children and then target them, and the authorities do not have the resources to monitor all of that activity, so a blanket ban is the only viable solution.
As ever, the court was broadly split down the middle with the more right-wing justices siding with the state and the more left-wing justices siding with Packingham.
The more conservative justices appeared to accept the argument that if the law was narrowly applied it would hold up to scrutiny. Justice Alito suggested limiting it to "core social networking sites" like Facebook and Google Plus (yes, Google Plus is still a thing in the halls of justice).
The more liberal justices were unpersuaded, however. They argued that services like Twitter and Facebook were far more significant than just places where children hang out.
Critically, Justice Anthony Kennedy was not taken with the state's case, which may well point to a 5-3 decision against North Carolina (the Supreme Court's ninth justice is going through confirmation).
Justice Elena Kagan pointed out that the current president is a bit of a fan of Twitter. "So a person in this situation, for example, cannot go onto the President's Twitter account to find out what the President is saying today?" she asked.
When told that was right, she responded: "But in fact, everybody uses Twitter. All 50 governors, all 100 senators, every member of the House has a Twitter account. So this has become a crucial – crucially important channel of political communication."
She later added that Facebook and Twitter "have become incredibly important parts of our political culture, of our religious culture."
Justice Stephen Breyer had an issue with the idea of banning people from an entire service just because there happened to also be children there. He asked why the law couldn't simply prohibit sex offenders from communicating directly with the children rather than cutting them off entirely – something more analogous to the real world.
It is worth noting that Facebook actually bans any convicted sex offenders from using the service and has a reporting mechanism for other users to flag anyone that they suspect of being one.