Supreme Court says even sex offenders get to use Facebook

June 19, 2017, 10:20am

Congratulations, Americans: Your ability to rant on Facebook is constitutionally protected, thanks to a Supreme Court opinion handed down Monday. The justices ruled unanimously that even registered sex offenders can use social media, so long as they aren’t committing a crime, because social media is so essential to modern free speech.

The case is one of the first to address the relationship between the First Amendment and social media. “As a result,” Justice Anthony Kennedy wrote in the unanimous opinion, “the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”


In April 2010, a North Carolina man named Lester Packingham took to Facebook to praise Jesus. One of his traffic tickets had been dismissed, so he posted, “No fine, no court costs, no nothing spent….Praise be to GOD, WOW! Thanks JESUS!”

There was just one problem with the post: Packingham is a registered sex offender. And under North Carolina law, it is a felony for sex offenders to use “commercial social networking Web site[s]” if they “know” people under 18 can access it. A police officer soon noticed Packingham’s post, and Packingham was arrested and convicted.

Packingham appealed, saying that North Carolina’s law violated his right to free speech. That argument carried him all the way to the Supreme Court, as his lawyers argued that the state was trying to cut off Packingham’s access to sites that are now essential to everyday American life.

“The law does not operate in some sleepy First Amendment quarter,” one of his lawyers, David Goldberg, told the justices during February arguments about the case. “It operates and forbids speech on the very platforms on which Americans today are most likely to communicate, to organize for social change, and to petition their government.”

The Supreme Court agreed, and Kennedy used considerable space in his opinion to wax poetic about the internet.

“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,” he wrote. “These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’”

Lawyers for North Carolina argued that the law was essential to stopping sex offenders from hurting children — a task that, thanks to the internet, is now more difficult than ever. “Existing efforts at addressing sexual predation of children were failing,” one of North Carolina’s briefs argued, adding that this law “bars offenders from taking what is often the critical first step in the sexual assault of a child. It allows law enforcement to stop the activity before a child is actually harmed.”

That this argument failed to convince the justices wasn’t surprising. Packingham — who registered as a sex offender for “taking indecent liberties” with a 13-year-old girl when he was 21 — wasn’t using social media in order to interact with minors, and so he was punished for doing something unrelated to his crime.

“To foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” Kennedy wrote in the opinion. “Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.”

Kennedy did leave open the possibility that North Carolina or another state could write a more narrow law limiting sex offenders’ access to social media. But overall, the justices seemed ready to endorse the internet and social media as sites of protected free speech.