The Dobbs Wire: Supreme Court WIN!!!

A U.S. Supreme Court win!  In a unanimous ruling the court struck down North Carolina’s law banning registrants from social media as unconstitutional; individuals on the sex offense registry have First Amendment rights.  The North Carolina law makes it a felony for registrants to simply “access” social media sites that allow under-18-year-olds to post such as Facebook, Twitter, LinkedIn—which means banishment from sites that are virtual town squares for many millions of people.  No actual online wrongdoing is required for conviction; a reporter opined that reading Donald Trump’s tweets would be a crime.  Reports say one thousand prosecutions have been brought using this statute.  Lester Packingham fought back, challenging his conviction and the law and he won.  He and thousands of North Carolina registrants will benefit from the Supreme Court’s decision.  Similar laws in other states are now under legal scrutiny.  Stay tuned – the politicians are already talking about tweaking the law.  This court decision makes it harder for the government to interfere with social media access, now the fight turns to the corporations which control large online platforms. 

Kudos and congratulations to Lester Packingham and his lawyers, David T. Goldberg of Stanford University Law School’s Supreme Court Litigation Clinic and North Carolina Public Defender Glenn Gerding.  Appreciation also goes to Eugene Volokh and David Post, a long list of lawyers, individuals and organizations who brought attention to this matter and supported it before the Supreme Court; the amicus briefs are linked below.

Have a look at USA Today’s report and a news story out of North Carolina.  Wayne Logan, a law professor and pioneering legal scholar on registry issues, has a terrific analysis for Collateral Consequences Resource Center of the decision including insight about how the court handled the pernicious issue of recidivism statistics.  The Supreme Court’s decision is linked at the end of this post.     -Bill Dobbs, The Dobbs Wire

USA Today | June 19, 2017

Supreme Court says sex offenders can access social media

By Richard Wolf

Excerpts:  Social networking websites have become such an important source of information that even sex offenders should not be barred from social media, the Supreme Court ruled unanimously Monday.  The justices said a North Carolina law that made it a felony for sex offenders to access sites such as Facebook, Snapchat and LinkedIn violated the First Amendment.

Although North Carolina’s law goes further than most states, Packingham’s victory represents a ringing defense of free speech rights for some of the nation’s most reviled citizens — the estimated 850,000 registered sex offenders. Kennedy called the case “one of the first this court has taken to address the relationship between the First Amendment and the modern Internet.”

“To foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” Justice Anthony Kennedy wrote. “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.”

It didn’t help state officials that their case focused on Lester Packingham, whose sex crime in 2002 resulted only in two years of supervised probation, but who was arrested eight years later for celebrating the dismissal of a parking ticket with a Facebook post that began “Man God is Good!”  MORE:

https://www.usatoday.com/story/news/politics/2017/06/19/supreme-court-says-sex-offenders-can-access-social-media/103006410/

News & Observer (Raleigh, NC) | June 19, 2017

US Supreme Court strikes down NC sex offender social media ban

By Anne Blythe

Excerpts:  The U.S. Supreme Court has overturned a North Carolina law prohibiting registered sex offenders from using Facebook or other social networking sites that minors can join.  In North Carolina, where 14,268 people are entered in the N.C. Sex Offender and Public Protection Registry database, civil liberty organizations have paid close attention to Packingham’s case.  Glenn Gerding, the Chapel Hill attorney who represented Packingham, argued several years ago that the law as written could make it difficult for a registered offender to engage in routine Internet activity, such as a Google search.

The 2008 restriction was part of a legislative package that Roy Cooper, the state Attorney General at the time, advocated for many years. Cooper was elected governor last fall.  The 2008 legislative package came about at a time that state attorneys general across the nation were raising concerns about social media sites such as Facebook and Myspace, hoping to protect users from sexual predators using the networks.

Many states have laws that require sex offenders to provide information about their internet use to authorities. States also limit internet use as a condition of parole or probation.  Louisiana has a law similar to North Carolina’s, but unlike the N.C. law just struck down, Louisiana’s applies only to people convicted of sex crimes with children, according to a document filed in Supreme Court.  MORE:

http://www.newsobserver.com/news/local/crime/article156928489.html

Collateral Consequences Resource Center | June 20, 2017

SCOTUS invalidates law criminalizing sex offender access to social media

By Wayne Logan

Excerpts:  Whereas in multiple prior decisions the Court characterized the governmental interest in combatting sexual offending against children as very significant, and invoked dramatic rhetoric of recidivism risk of sex offenders as a whole as “frightening and high” and the like, Justice Kennedy’s opinion for the Court refrained from such language; it simply emphasized the seriousness of preventing sexual offenses directed at children.

The absence of such inflammatory rhetoric about recidivism risk perhaps reflects awareness of recent scholarship making clear that inflated empirical assessments of risk, repeatedly invoked as justification by courts and legislatures to justify expansive and often draconian sex offender-related policies, are well off the mark. (Indeed, it is worth noting that Justice Kennedy himself has used such language in the past.)

Second, and no less important, is language in Packingham suggesting a possible softening of the Court’s customary unequivocal backing of laws imposing harsh sanctions on convicted sex offenders, which the Court acknowledged as numbering among the array of collateral consequences experienced by individuals.

Also, it must be acknowledged that while Justice Kennedy’s opinion was joined by four colleagues (Justice Gorsuch did not take part), the three-member concurrence authored by Justice Alito (joined by Chief Justice Roberts and Justice Thomas) contains some of the hyperbolic recidivism-related rhetoric found in prior opinions. MORE:

http://ccresourcecenter.org/2017/06/20/scotus-invalidates-law-criminalizing-sex-offender-access-to-social-media/

Packingham v. North Carolina

U.S. Supreme Court, No. 15-1194

Decision issued June 19, 2017:

https://www.supremecourt.gov/opinions/16pdf/15-1194_08l1.pdf

Oral argument – Feb. 27, 2017 – archived audio and transcript:

https://www.supremecourt.gov/oral_arguments/audio/2016/15-1194

Legal briefs:   

http://www.americanbar.org/publications/preview_home/2016_2017_briefs/15-1194.html