“Sex Offenders” and the 1st Amendment: Can Legislation Keep Sex Offenders Off Social Media?

In America, should sexual predators be given the opportunity to communicate on the Internet when it is possible they may message our children?

Sex offenders are arguing that the First Amendment shields them from being blocked from social media websites that children utilize. The Supreme Court will soon rule on whether the First Amendment, in fact, does this.( This article will focus on sexual predators but the contested law at issue does not limit itself this way but effects all registered sex offenders).

In America, should sexual predators be given the opportunity to communicate on the Internet when it is possible they may message our children? If the answer is no, we must ask ourselves: how do we plan to legally create a society in which predators cannot contact children online? Possibly, we could simply pass statutes that ban sexual predators from certain websites.  However, wouldn’t this be banned by the Constitution? Surely the Constitution never denies someone the ability to talk with family or to engage in America’s greatest pastime: “angry political tweeting.” Well, not so fast, the First Amendment has its limits. For example, you cannot express yourself by running outside in the nude or by libeling someone.  So which is it? Can we, or can we not, pass statutes that would protect our children from online predators?

The Supreme Court is set to tackle this question in Packingham v. North Carolina. North Carolina passed a statute in 2009 that prohibits registered sex offenders from accessing websites in which children are participants. The North Carolina judiciary interpreted the prohibited websites to include: Facebook, Twitter, and LinkedIn; and the permitted websites to include: the Paula Deen Network, Glassdoor, WRAL.com, and Shutterfly. Packingham, the sex offender in this case, argues that his right to freedom of speech is being violated because social media is not only a platform for kids, but is a platform for adults. Further, websites such as Facebook are actually utilized by adults to communicate; whereas the Paula Deen Network is not. Basically, Packingham is arguing the North Carolina judicial interpretation of the statute effectively cuts off any reasonable outlets for him to communicate with other adults—thus compromising his freedom of speech.

Packingham argument has merit. In a nutshell, the Supreme Court ruled in City of Ladue v. Gilleo (1994)that sexual predator’s First Amendment rights are not violated when a particular form of their speech is censored—as long as there are “ample alternative channels” for them to use.  Looking at the phrase “ample alternative channels,” could we in good faith say that the Paula Deen Network is an ample alternative to Facebook? Do not hear me wrong; Paula Deen can throw down in the kitchen, but I know of no one who uses her website to communicate with others. This website is mostly used to retrieve cooking recipes and to watch cooking tutorials.

Unlike Packingham, the government of North Carolina does not have a strong argument when it comes to looking at “ample alternative channels.” But all is not lost on their end. Sometimes the Supreme Court will rule that an individual’s liberty can be regulated if the government has a strong enough compelling interest. And by strong enough, I mean that the importance of the compelling interest outweighs the importance of someone’s liberty.  For example, the government limits your speech by regulating when, where, and how you can protest. They are able to do so, despite our freedom of speech, because there compelling interest of regulating protest, to prevent massive riots and looting, outweighs our right to protest in whatever fashion we wish to do so.  Thus, it is possible that a sexual predator’s right to communicate on popular social media websites is outweighed by North Carolina’s interest to protect children from being victims of sexual predators.

In the past, we could tell sexual predators to simply stay away from playgrounds and schools, but now children can be accessed in 140 characters or less. Because of this, I think it’s safe to say the court has its hands full. Massive growth in technology has caused a copious amount—if not most—of communication to be done online. Therefore, by blocking sexual predators from using certain websites, we may protect children, but we will also be shutting predators off from the rest of the world. Maybe we do not mind this, or possibly we do. If you think the court should rule against Packingham, ask yourself this: if prisons are “correctional facilities,” should sexual predators be written off and lose their access to the world—even though they have already paid their debt to society? And lastly, if you believe the court should rule against North Carolina, ask yourself this: would you be comfortable with your child on Facebook if you knew sexual predators were on there with them?

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About Tony Black

Tony Black is currently receiving his Juris Doctorate at the University of Michigan Law School. He has written for the Washington Times and worked as a producer for the Hugh Hewitt Show. Learn more about him at tonyjblack.com and follow him on Twitter @tonyjblack.