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Supreme Court Wonders Whether Sex Offenders Have a Right to Tweet

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By Casey C. Sullivan, Esq. on February 28, 2017 12:57 PM

Do registered sex offenders have a First Amendment right to sign up for Facebook or follow the president on Twitter? That was the question before the Supreme Court yesterday. The Court heard oral arguments in the case of Packingham v. North Carolina, involving a North Carolina law that makes it a felony for any sex offender on the state's registry to access social media.

During oral arguments, the justices, who remain social media shy themselves, acknowledged the greater role such websites play in the public sphere and seemed incline the strike down, or at least narrow, North Carolina's social media restrictions.

North Carolina's Social Media Sex Offender Law

North Carolina's law limiting registered sex offenders' internet use was adopted in 2008, in an effort to make the state "one of the toughest states, if not the toughest state" for registrants.

Yesterday's oral arguments focused largely on social media, but the North Carolina law isn't limited to Facebook or Instagram. The law makes it a felony for any registered sex offender to access almost any website that allows communication between users and does not limit its membership to adults.

That could be read broadly to encompass almost all websites with a social character -- everything from the New York Times comments sections to recipe-sharing websites, and even to FindLaw.

The current dispute over the law arose when Lester Packingham took to Facebook in 2010, posting that "God is Good!" after he beat a traffic ticket. Packingham had pleaded guilty eight years earlier to taking "indecent liberties" with a minor, which required him to register as a sex offender.

Durham police officers saw Packingham's ticket-dismissal Facebook post and arrested him for violating the state's law against accessing social media. Packingham was subsequently convicted, and that conviction was eventually upheld by the North Carolina Supreme Court, which found the law to limit conduct, rather than speech.

Justices Skeptical of Social Media Restrictions

Packingham argues that the law unconstitutionally limits his free speech rights. At oral arguments, several justices seemed sympathetic. David Goldberg, arguing for Packingham, said that the law restricted "vast swaths of core First Amendment activity," that had no relation to the government's goal of protecting children from sex offenders.

Several of the justices noted the increased role that social media has in public life. Justice Kagan pointed out that the president regularly takes to Twitter, while every governor and member of Congress has a Twitter account, describing social media as a "crucially important channel of political communication." Under North Carolina's law, "a person couldn't go onto those sites and find out what these members of our government are thinking or saying or doing," she said.

Justice Kennedy analogized social media to a modern-day "public square," where individuals can gather to discuss issues of public concern. Such sites' "utility and the extent of their coverage," he said, "are greater than the communication you could have ever had, even in the paradigm of the public square."

Robert Montgomery, senior deputy attorney general for North Carolina, argued that there were plenty of other avenues registrants could pursue to stay informed and communicate with others. Justice Alito seemed sympathetic to that "alternative channels" argument, joking that "there are people who think that life is not possible without Twitter and Facebook and these things and that 2003 was the Dark Ages." The law could be read to limit it to "core social networking sites," and not things like the New York Times or BettyCrocker.com.

Still, most justices seemed highly skeptical of North Carolina's law. When the state tried to compare the law to restrictions on campaigning near polling places, for example, Justice Kennedy interjected: "I think that does not help you at all." If that's the precedent you're relying on, he said, "I think you lose."

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