Packingham Decision Says More About The Power Of Facebook Than Sex Offenders
Sites like Facebook and Twitter have become entirely too powerful and ubiquitous for the government to restrict access to.
I’d like to think that we live in a more evolved world which can appreciate nuance when it comes to sex offenders who have served their time.
I’d like to think that we nearly unanimously agree that free speech is such an important right that it cannot be abridged.
But the Supreme Court’s 8-0 decision in Packingham v. North Carolina doesn’t really support either of those thoughts. Yes, the Court found that preventing sex offenders from going on the internet was an overbroad restriction on free speech. And yes, that is good news for sex offenders who have served their time for their crimes.
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However, the most important takeaway from the Packingham decision is that social media sites like Facebook and Twitter have become entirely too powerful and ubiquitous for the government to restrict access to, and that is new.
SCOTUSblog has a well-written summary of the case of Mr. Lester Packingham. There’s a key fact here I don’t want people to overlook:
In 2002, Lester Packingham became a convicted sex offender at the age of 21, after he pleaded guilty to taking indecent liberties with a child – having sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he posted on Facebook to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that makes it a felony for a convicted sex offender to use social-networking websites, such as Facebook and Twitter, that allow minors to create accounts.
He posted about a traffic ticket, which means he was driving. That means that sex offenders are allowed to DRIVE despite being registered sex offenders.
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An obvious point, I know, but think about that for second. Given all the things we do to sex offenders when they try to re-enter society (registration, notification of neighbors, general social approbation), there’s no real reason why they should be allowed to drive. Right? For a lot of them, driving is how they get to the place where they are going to commit a sex crime in the first place. Is there not a compelling state interest in denying a sex offender a VAN? When I was on the playground, I wasn’t looking out for “sex offenders,” I was looking out for creepy vans.
Of course, we don’t restrict the registered sex offender’s ability to drive, because we know that in most places they cannot function in society without a car. There is no constitutional right to a car, which is why we can take it away from any old drunk, but there is a sense that a car is a necessity that shouldn’t be taken away from people under most circumstances.
When I read the Packingham decision, I see the Court elevating social media to the status of a driver’s license. A kind of necessity to engage in the American experience. Here’s something from Justice Kennedy’s opinion:
Even with these assumptions, 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 on any subject that might come to mind. With one broad stroke, North Carolina bars 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. Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.
There are speech concerns, obviously. But the Court seems just as moved by the “access to the world of ideas” on Facebook and Twitter, as they are with Packingham’s right to post about those ideas.
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As a person who gets “accessed” by the world of ideas on Twitter more often than any sane person would enjoy, I gotta say that it seems like the majority is elevating Twitter and Facebook to an unnecessarily high status in our culture. Of course, I believe that Packingham has a legitimate First Amendment right to go on social media. But I might pump the brakes on how inviolable that right need be.
Which puts me in the awkward and entirely regrettable position of agreeing with… Justice Sam Alito. Alito (joined by Roberts and Thomas) concurred in the judgment, but wrote separately to say this:
The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks. Ante, at 4–5. And 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, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers. I am troubled by the implications of the Court’s unnecessary rhetoric.
Progressive Science-Deity forgive me, but I am also troubled about the implication that social media is just like a public park or physical space. I don’t know that there’s anything we can do about it, insofar as I don’t know that there’s any better way of protecting important speech rights on social media but for treating those sites like a public square. But at the same time: I think a person standing in the middle of a park shouting the n-word should have one suite of rights, and the person shouting the n-word at me on my own Facebook page should maybe have another.
And Lester Packingham probably shouldn’t be able to DM my kids.
Unless Facebook and Twitter really are as all encompassing as the Court suggests. And maybe they are. Hell, it won’t be long before Google is driving Packingham around, so he won’t need God to get him out of a parking ticket.
Opinion analysis: Court invalidates ban on social media for sex offenders [SCOTUSblog]
