Sex offenders can not be stopped from using Facebook according to the Supreme Court. In a unanimous ruling, the Justices agree the First Amendment protects free access to the internet. “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.”
North Carolina passed a law in 2008, backed by their Attorney General, to forbid registered sex offenders from using any social media site that minors can access — including Facebook. Lester Gerard Parkingham Jr., who is a registered sex offender, faced new charges when police discovered he had an alias Facebook page. His case was the first to test if such laws are valid because today’s social media gathering places have become “virtual town squares.”
Parkingham was found guilty in 2002 of “taking indecent liberties with a child” which under North Carolina law is considered a class F mid-level felony but indicates that the underlying incident did not involve violence.
After the 2008 law went into effect, police started routinely watching Facebook and My Space pages, which is how they stumbled on a Facebook picture of Parkingham. He had simply posted about a traffic ticket resolved in his favor, it was considered not just a violation of his parole, but worthy of additional charges. In May of 2012, he was found guilty of violating the media restriction law. His sentence was suspended and he was allowed continued probation.
In earlier court proceedings Parkingham’s lawyer, Glenn Gerding, argued that the way the law was written, even a Google search would be off limits. Based on the definition, YouTube how-to videos and ordering from Amazon are just as forbidden as MySpace, simply because of the comment boxes allowing users to post reviews or questions. Another of Gerding’s clients was prevented from using Skype to watch his child’s T-ball games, even with his wife on the other end filming the action.
Parkingham’s case was heard at the local level by the state’s Appeals Court, who properly decided that the law restricted free speech because it was too general.
The state challenged that decision by taking it to the state Supreme Court where they found more sympathy. North Carolina’s highest court, by a margin of 4-2, legislated from the bench that the need to protect children outweighed the “incidental burden imposed.”
The majority opinion, sending the case back to the state for reversal, explains that this is the first chance the Supreme Court had to look closely at how the internet fits into the First Amendment. The Court wanted to be very careful when thinking about limits on Constitutional protection of social and information sources which are now integrated with our daily lives.
Totally preventing access to social media interferes with the First Amendment by “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” The court was bothered to think that even those who had finished their sentences were limited in which websites they could use.
The purpose of North Carolina’s law is to protect social media users from sexual predators. Some of the popular forums are used more by adults than children but are still unlawful to access under the 2008 law because a minor might have a page.
The Supreme Court decision points out “…the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind.”
Justice Gorsuch did not join the ruling because he had not heard the arguments. Chief Justice Roberts, joined by Samuel Alito and Clarence Thomas, criticized some of the language used by Kennedy, even though they agree with the result. They are afraid states would go to the other extreme by not taking any measures to restrict sex offenders. Justice Alito wrote a minority opinion for the three saying, “This language is bound to be interpreted by some to mean that the states are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including for example internet dating sites.”
Some states have laws now that are much more limited in scope and, therefore, are easier to justify. Many require offenders to hand over their usage logs or limit use of the internet as probation or parole conditions. Louisiana’s law is much like North Carolina’s except limited to those who committed crimes against children instead of every sex offender and will probably need to be re-examined in light of the new ruling to see if it is narrow enough not to prevent legitimate internet use.