Do registered sex offenders have a First Amendment right to access Facebook? Yes, according to the U.S. Supreme Court. In June 2016, the Court struck down a North Carolina law that barred registered sex offenders from using social networking websites. The court ruled that the law unconstitutionally limited offenders’ free speech rights. (Packingham v. North Carolina, Case No. 15–1194 (June 19, 2017).)
In 2002, 21-year-old Lester Gerard Packingham pleaded guilty to taking indecent liberties with a child after having sexual contact with a 13-year-old girl and was required to register as a sex offender. A North Carolina law barred all registered sex offenders from using social media sites on the Internet.
In a 2010 Facebook post, Packingham celebrated getting a traffic ticket dismissed. A Durham police officer saw the posting, and Packingham was convicted of violating the North Carolina law banning registered sex offenders from social media sites. The prosecution never accused Packingham of attempting to contact a minor or of doing anything else illegal on the Internet.
States have great latitude in the post-release restrictions and duties they can impose on convicted sex offenders. People convicted of certain sex offenses must register on public databases. And, in some circumstances, sex offenders may be involuntarily committed after their release from prison. But courts will closely examine restrictions on freedom of speech after the Packingham decision.
Laws that limit speech are subject to stricter court scrutiny (in other words, more stringent examination) than other laws, to be sure that they do not violate the First Amendment to the Constitution. Freedom of speech includes the right to hear or read freely, as well as to speak freely.
In striking down the North Carolina law, the Supreme Court found that the ban violated Packingham’s First Amendment speech rights because, “with one broad stroke, North Carolina bar[red] 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.”
But the Packingham ruling doesn’t mean that all laws limiting communications are unconstitutional. The decision rejected the specific statute at hand. It also highlighted factors courts have to consider when evaluating any law restricting speech.
Packingham was one of the Supreme Court's first decisions addressing the interplay between the First Amendment and the Internet. In the opinion, the Court acknowledged both the importance of cyberspace and the speed with which it evolves. Justice Kennedy, writing for the majority of the Court, noted that “one of the most important places to exchange views is cyberspace, particularly social media.” Justice Kennedy also cautioned that the Internet is “so new” and “so far reaching that courts must be conscious that what they say today may be obsolete tomorrow.”
Under the First Amendment, “content neutral” laws don't address the subject matter of speech and may be constitutional in certain circumstances. (A different and even stricter standard would be applied if a law limited speech based on its content.)
For example, a city that outlaws the Ku Klux Klan from marching through town because the KKK’s message is offensive violates the First Amendment. However, a city that requires the KKK to get a parade permit before marching does not violate the First Amendment. The parade ordinance is a content-neutral law, in that it does not address the subject matter of the speech but only the time, place, or manner of its expression.
The Supreme Court in Packingham assumed that the North Carolina law was content neutral but nevertheless found that it was not “narrowly tailored” to serve the “significant governmental interest” of protecting children from contact by a registered sex offender.
The Supreme Court acknowledged that a state legislature “may pass valid laws to protect children” and sexual assault victims. Justice Kennedy confirmed that the First Amendment permits a state to “enact specific, narrowly-tailored laws” that prohibit sex offenders from engaging in conduct that might lead to a sexual crime, such as using social media sites to contact minors or gather information about them.
Again, a state may enact carefully drawn laws to restrict some online activities of registered sex offenders without violating the First Amendment. But the Supreme Court found that North Carolina's law was too broad, with Kennedy noting that the state had barred access by sex offenders to major information sources that could benefit them. Kennedy wrote that closing off access to all social media prevents a registered sex offender from engaging in legitimate exercise of First Amendment rights.
There's no overstating the importance of the government’s interest in protecting children from sexual predators, and states are still free to impose many restrictions on convicted sex offenders. The Packingham decision was, in the end, a testament to the power of the First Amendment.