“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.
  • Douglas Self

    IMO, the North Carolina is unduly vague, and ought to be struck down as an unnecessary infringement on the First Amendment rights (not only to ‘speak’, but to ‘peaceably assemble’). Furthermore, for the judiciary at ANY level, up to and including the SCOTUS, to determine what web sites are ‘for children’ and which are ‘adult’ in nature is disturbing. I would say that North Carolina’s “compelling interest” does NOT give it authority to ban the participation on sites commonly used by adults with other adults, like FB, to paroled sex offenders for fear that SOMEHOW they might be able to communicate with children in presumably a nefarious manner. Even loathsome sex offenders have First Amendment rights. Else, why not just do away with the First, Fifth, Sixth, and Eighth Amendment rights of ‘sexual predators’, and forbid them Internet access altogether, or commit them civilly to a mental institution once they’ve served their full sentence as a ‘potential danger’, as has been attempted in several states, because there’s a ‘compelling interest’ to inhibit further crimes from these cretins?

    Although the intent of the NC law is quite laudable, as we don’t want sexual ‘predators’ using the Internet to fish for ‘prey’, it would seem that technology makes it quite possible to track their activity should they be criminal and foolish enough to do so. Would it be better for example, rather than attempt to legislate where a ‘sexual predator’ can go on the Internet or not, and especially to vet specific web sites, to simply make it a condition of probation and/or parole that the offender self-identify on any public forum that (s)he is a convicted sex offender, stating the offenses with their dates of convictions? Or simply leave the responsibility to ‘protect’ child from online ‘predators’ and other exploitation where it BELONGS…with their PARENTS.

    Moral panic, even with the best of intentions, makes for terrible law.

  • Also, the article switches back and forth between “sex offenders” and “sexual predators”. There is a huge difference between the two.

  • To ban ALL sex offenders from social media is wrong. America has a long history of grouping people together and banning them from certain civil rights. Here we go again by banning registered sex offenders from social media sites. This is against the constitution. The ACLU should be on top of this…

  • Using dehumanizing language like “sexual predator” makes it easier to take our rights away. The 1st Amendment doesn’t make exceptions based on status. Obviously there are legitimate reasons why registered citizens would utilize social media, and any attempt to block us from other legitimate uses for social media runs afoul of our Constitution. I would have expected a black person to understand discrimination based upon a stigma more than most, but it seems I was wrong.