There’s a new recent article in the SCOTUSblog regarding the Packingham case. For those not familiar with it I’ll sum it up in a nutshell.
In 2010 Lester Packingham, a registrant, innocently went on Facebook posting praise to God for his good fortune in having a traffic ticket dismissed. Unfortunately, (you knew that was coming, right), a Durham, N. Carolina police officer was logged on to Facebook monitoring whether or not registrants were using the site. Poor Mr. Packingham, whose original indictment was from 2002 and who had received a 10-12 month suspended prison sentence and was ordered to register as a sex offender, now found himself in violation of a N. Carolina law. The violation, you guessed it, “accessing” a commercial social networking Web site that allows minors, in this case, Facebook.
Mr. Packingham goes to trial and asserts that the law infringes on his First Amendment freedom of speech rights, he asks that the charges be dropped. They are not and he is convicted and receives a suspended sentence. An intermediate state appellate court then overturns his conviction, followed by a state supreme court which then reverses that ruling, reinstating his conviction. In the fall of 2016, the justices were agreeable to hearing oral arguements for this case, and that will occur next week.
N. Carolina’s defense of the law argues that this is how far the state must go to keep children safe from sexual abuse. Their thought process seems to be that having the state and the general public being able to track where registrants live “wasn’t enough” and that (I love this) “sexual predators became increasingly adept at using social media to gather information about minors’ lives, families, hobbies, hangouts, and the like. Then they (I guess they refers to every registrant no matter what their crime) used this information to target unwitting victims, either in person or online”.
Will someone please alert the powers that be in the state of N. Carolina that all registrants are not child molesters!.
All this hoop-lah because Mr. Packingham was rejoicing over his traffic ticket being dismissed and made the mistake of sharing his relief on social media. It was his action, not his words that got him into trouble. According to the Supreme Court, receiving and gathering information are activities which are protected under the First Amendment, and they can not be freely regulated and punished. According to Mr. Packingham, his ability to go on social media websites should be viewed no differently than his ability to go to websites such as those of newspapers.
Mr. Packingham stands up to the law arguing that his First Amendment rights are still being violated by N. Carolina. They are punishing him for conduct that is not criminal (going on social media) just because someone else might conduct criminal behavior on social media websites. What someone else might do should bare no reflection on Mr. Parkingham. It’s like comparing apples and oranges.
The law doesn’t require the government to show that a sex offender intended to cause any harm by accessing a prohibited website, rather, the law imposes punishment because access could facilitate harm if undertaken by someone with a criminal purpose.
But isn’t that true of anyone?
N. Carolina’s law seems to be punishment reserved for registrants who have already paid for their crime, not for any of the someones out there who have criminal intent on their minds.
Mr. Packingham goes on to question the very definition of “social media websites”. While Facebook is the concern in this situation, what would one consider all other websites where readers can gather or share information? And who gets to decide what websites are OK for registrants and which ones are forbidden. The very law preventing Mr. Packingham from using social media websites because children have access to them, apparently doesn’t even apply to chat rooms and photo-sharing sites when these have been known to be avenues perused by online child predators. Our world is all about social media. Registrants have served their time, we expect them to reintegrate back into society yet we have laws that tie their hands when it comes to fully reintegrating.
N. Carolina contends that it’s not the broad-reach of the law that matters but it’s effectiveness in real life. Their interpretation of the law is basically that sex offenders are barred access to “true social networking sites” sites where they can link to other webpages and collect information about children. (Again, not all registrants are sex offenders.) I have to laugh when N. Carolina presumes that “other” websites such NY Times.com and BettyCrocker.com. are apparently all a registrant should need. Why should they need to access Facebook, Twitter, Linked-In, etc? Um, maybe because that’s how the world works in 2017.
Forgive me N. Carolina, do you spend much time on the internet? Do you know there is a whole wide world out there that people, even registrants, would like to know about? Maybe the NY Times and BettyCrocker websites just don’t cut it. Maybe registrants would like to connect with family, employers, friends, you know, all those real life people they had limited contact with when they were in prison.
Another good point made by Mr. Packingham is that social media has become a way of life. President Obama’s 2011 “town hall” meeting was solely conducted over Twitter. Does that mean Mr. Packingham would be prevented from hearing the President speak since Twitter is social media?
Mr. Packingham offers alternatives to N. Carolina’s current laws. How about making it a crime for anyone to access websites for nefarious purposes? What about laws against anyone soliciting minors online? Why just pick on registrants?
N. Carolina’s claims that it has tried to fight child sexual abuse in other ways that were ineffective. They are misguided in thinking that if they allowed registrants to use social networking sites and then abuse was committed, it would be inconsistent with their goal of preventing abuse altogether.
Well, I think it’s fair to say that there are plenty of people other than registrants that go online for the wrong reason. In fact, if N. Carolina bothered to do it’s research, it would find that the probability of a registrant going online for the wrong reason is extremely low compared to the rest of the general public. Preventing abuse altogether is a wonderful idea, but the fact of the matter is that it’s probably not registrants out there that are committing abuse at this very moment, it’s family members, friends of the family, caretakers, other people you wouldn’t necessarily suspect. All registrants are not bad people, just like not everyone else is a good person.
I don’t know about you, but I’m rooting for Mr. Packingham. I hope he fares well in all of this and that N. Carolina sees the error of its ways. The man’s original conviction is 15 years old.
When will N. Carolina untie this man’s hands?