In 2010, Lester Packingham was a happy man. He had just been in court where he beat a traffic ticket. Like many others would do in the same situation, he posted about his success on Facebook. He wrote, “No fine. No court costs. No nothing. Praise be to God. Wow. Thanks Jesus.”
Lester Packingham is a registered sex offender
In 2002, Packingham pleaded guilty to taking indecent liberties with a 13-year-old girl. One of the consequences of the conviction was Packingham had to register with the state as a sex offender.
Six years later, North Carolina passed a law making it illegal for sex offenders to access any social media platform children have a right to use. A police officer was checking social media sites when he came across Packingham’s post. Packingham was charged with a felony and later convicted. He was given a suspended sentence and placed on probation.
Packingham appealed his conviction to the North Carolina Court of Appeals that allowed the appeal and vacated the conviction. The court agreed with Packingham that the law was unconstitutional because it violated his rights under the First Amendment. But this decision was later reversed by the North Carolina Supreme Court in a 4-2 decision. Packingham then appealed his conviction to the U.S. Supreme Court. Last October, the top court decided they would hear the case.
There are 20,000 registered sex offenders in North Carolina and 1,000 have been charged with illegally accessing accessing social media.
SEE ALSO: U.S. Supreme Court will hear sex offender social media ban
Arguments made before the Supreme Court
Packingham’s lawyer, David Goldberg, argued the offence breaches the First Amendment right to free speech. He argued the ban is over broad and Packingham’s expressing his happiness at having beaten a traffic ticket had absolutely nothing to do with the government’s objective of protecting children.
Secondly, Goldberg argued Packingham was prevented from using the platforms that most Americans use to communicate with each other and and use to protest the government in order to seek social change. Finally, Packingham’s lawyer argued his client was punished for exercising his constitutional right to free speech without any regard to his culpability or lack of culpability.
Deputy Attorney General Robert Montgomery argued the case for the state. His essential argument was states have the right to ban sex offenders from going into parks and playgrounds where children are likely to gather. These conditions are necessary because of the high rate of recidivism among convicted sex offenders. Montgomery likened social media platforms to these parks and playgrounds. He argued there is a danger to children using social media because there is no difference between the real world and the virtual one.
Montgomery also argued sex offenders are not completely banned from the Internet. They can still have blogs, read blogs and do podcasts.
What the justices said during oral arguments
From comments made by the majority of justices, they were not buying the argument the law was constitutional. Justice Kagan pointed out President Trump is not the only politician using Twitter. She noted all governors, senators and representatives have Twitter accounts and the medium has become an important platform for political communication. She got Montgomery to admit a registered sex offender in North Carolina could not legally access the Twitter account of the president of the United States.
Kagan said banning social media use is more like banning people from the public square than it is imposing a ban on entering a park. While there may be children in the public square, there are other legitimate reasons to go there.
Justice Stephen Breyer asked Montgomery if a law could be passed barring convicted swindlers from going on social media platforms where money is being discussed. Montgomery wasn’t sure but Breyer said if such a law could be passed, pretty soon all criminals would be prevented from using the Internet for one reason or another.
Justice Sotomayor said there can be an economic impact to sex offenders if they are banned from social media. She specifically mentioned LinkedIn where people, including high school students, go to look for jobs. North Carolina’s law would prevent sex offenders from trying to find a job on such sites.
Justice Alito seemed not to buy Packingham’s arguments. He acknowledged people think of 2003, before Twitter and Facebook, as being the dark ages but disagreed with those who think life is not possible without those social media platforms. Alito also pointed out channels of communication existing before social media were not taken away from sex offenders.
Some other states have similar laws and how narrowly or broadly the Supreme Court drafts its decision will determine whether those laws will also be struck down. The Court is expected to hand down its decision before the current term ends in June.
