Let's
talk about Packingham v. North Carolina. May states constitutionally
ban convicted sex offenders from using social media? Some points that
came up:
- Social media is an important part of modern life. The President uses Twitter to convey breaking news--this law would ban sex offenders from reading the President's Twitter feed. Isn't that excluding sex offenders from fully participating in our polity as informed citizens? Who's going to tell Packingham about the latest dead celebrity?
- On the other hand, there's a lot of precedent for denying people rights after they have been duly convicted of crimes. Going to prison means losing many rights. Not only that, after release you may face indefinite or lifetime loss of certain rights, like the right to vote or right to bear arms. You can lose the latter after only a misdemeanor conviction or even a restraining order! So if we don't sympathize with the guy who slaps his girlfriend and permanently loses his Second Amendment rights, why should we sympathize with the sex offender who loses access to Facebook?
- It's legally irrelevant, but since I brought up sympathy, let's have a moment of sympathy for the "sex offender" in this case, who was put on the registry after having sex with a 13-year-old when he was 21, fifteen years ago. A bad decision, but not bad enough to justify being on a sex offender registry.
- A big reason why Packingham won (spoiler) was the overbreadth of the law. It banned "gaining access to" social-networking sites that allow minors, no matter what you do on those sites, even if you have zero contact with minors, and even if you never post any comment. (Packingham got in trouble after a Facebook post in which he attributed getting out of a couple of traffic tickets to being specially favored by Jesus. I'm no theologian, but I would think once you're a registered sex offender you'd give up on the idea of being favored by God.)
- The law also categorized any site as a "social-networking site" if it allows users to comment and does not ban under-18 users. So not just what you or I would think of as social-networking sites, but most news sites, blogs, job sites, and many commercial sites like Amazon that allow user reviews.
- So a law meant to prevent sex predators from seducing children online ends up banning people from buying shoes on Zappos, looking for apartments on Craigslist, or reading WashingtonPost.com. If the person who wrote the law had drafted more cautiously, this law would have survived as a narrowly tailored "don't contact strange kids online" rule. Why don't people hire me to write these laws? As it is, the law was struck down as an unconstitutional restriction on speech.

