Supreme Court: Sex Offenders Have Free Speech Rights to Use Social Media

Absolving a sex offender for posting on Facebook, the U.S. Supreme Court struck down a North Carolina law that banned registered sex offenders from using social media.

In the unanimous ruling, the Supreme Court said the statute violated the First Amendment. It abridges "lawful speech as the means to suppress unlawful speech," Justice Anthony Kennedy wrote in Packingham v. North Carolina.

"A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more," the Court said in affirming and remanding the widely reported case.

Sex Offender

Lester Packingham, Jr., was convicted in 2002 of having sex with a 13 year old when he was 21. He was registered as a sex offender and ordered to comply with conditions of probation.

In 2010, however, he was indicted for violating the Protect Children from Sexual Predators Act. The law, enacted in 2008, prohibited sex offenders from using social media.

Packingham challenged the law as unconstitutional, and a federal appeals court agreed with him in 2013. The Supreme Court unanimously affirmed that decision this week.

"By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge," the Court said in a 21-page opinion.

Social Media

Packingham had run afoul of the North Carolina law when he posted about a traffic ticket on Facebook. A police officer saw the post, which led to his conviction.

The North Carolina law made it a felony for a registered sex offender "to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages."

In its decision, the Supreme Court noted that the law applied to about 20,000 sex offenders in North Carolina and that 1,000 had been prosecuted for violating it. The Court acknowledged the delicate balance between their First Amendment rights and preventing criminal acts.

"Specific criminal acts are not protected speech even if speech is the means for their commission," the Court said. For example, a state could prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor."

Related Resources:

• North Carolina Legal Research (FindLaw's Cases & Codes)
• Supreme Court Strikes Down Sex Offender Social Media Ban (Courthouse News)
• Disparaging Trademarks No Longer Banned by Lanham Act (FindLaw's U.S. Supreme Court Blog)