Is your politically-charged Facebook post, an Instagram photo of your last vacation, or Snapchat account a vital, Constitutionally protected right, or a privilege that can be taken away?
That’s the question the US Supreme Court will grapple with Monday, as it hears a case regarding a North Carolina law that bars registered sex offenders from using some social media platforms where users under the age of 18 are allowed, including Facebook, Snapchat, and Instagram. While the state argues that the law blocks sexual predators from gathering information on potential victims, the plaintiff counters that the sweeping ban constitutes an infringement of the First Amendment and puts those on the registry outside of political conversation.
Interpreting the First Amendment has proven a daunting task for courts throughout US history. The amendment says legislators “shall make no law” restricting speech, but courts have ruled many times that the right is far from absolute, particularly when the safety of others comes into play.
Meanwhile, privately-owned social media platforms have found themselves confronting the concept as well, straddling the line between allowing free expression on their platforms and keeping sites clear of particularly offensive and abusive communication or obscene material, especially anything that would involve abuse of children.
At its core, the case raises the question of just how vital social media has become for both personal and political communication, and if the state has any authority to grant or withdraw a person’s access.
The case follows the 2010 conviction of Lester Packingham, who was found guilty of having a Facebook account. Mr. Packingham is a registered sex offender who pleaded guilty to having consensual sex with a 13-year-old girl he was dating at the age of 21. He said he did not know how old the girl was, and received a suspended sentence along with a 30-year-long stint on the sex offender registry.
Packingham was never accused of committing another sexual offense — aside from signing up for Facebook, an act police discovered seven years after he landed on the sex offender registry. A search of his home did not reveal any evidence related to sex abuse, and he was placed on probation for operating the account, a crime that constitutes a felony.
The North Carolina Supreme Court upheld the law, noting in its ruling that there were several lesser-known sites where those on the sex offender registry could still connect with adults or research information.
The state argues that governments have more room to curtail the behavior of sex offenders, much like requirements that dictate how far from school zones and parks they must live. Other regulations mandate that those on the registry update the government about where they work or new address changes. These requirements can vary widely from state to state, and North Carolina is the only state with such a strict social media law. Federal courts struck down similar measures put forth in Indiana and Nebraska.
Some say the law is a broad encroachment on the First Amendment rights of convicted sex offenders. Rather than just targeting those in prison or on probation, it creates a blanket ban for anyone on the sex offender registry, from those arrested for public urination to child rapists, long after they’ve served their time.
"It is hard to imagine that a government would impose, or a court would uphold, a similarly sweeping, criminal ban directed at any other group of people,” Packingham’s lawyers argued in a brief.
The law also neglects to acknowledge the irreplaceable role social media giants play in modern communication and expression, the plaintiff says.
Packingham argues that social media has become a crucial mode of communication in the 21st century, serving as primary platforms where people “express themselves, associate, and learn important information.” He suggests that the state consider a more narrow restriction regarding ways to stop possible interaction between children and registered sex offenders, rather than focusing on all use of the sites.
But the state notes that registered sex offenders “have myriad alternative channels of communication” as well as access to informational sites and news online, and that the law does not bar them from communicating with adults through other venues or accessing any necessary information.
That argument ignores the cultural and political importance of sites like Facebook, others say. Social media has become a way for politicians and candidates as well as advocacy organizations to connect to their bases. In some cases, such as the Arab Spring, networks have played vital roles in connecting people who wish to make impactful, positive changes to their communities or governments.
“Sites such as Facebook and Twitter have become a prominent and uniquely effective form of communication for which there is virtually no equivalent substitute,” an amicus brief submitted by Eugene Volokh, a UCLA law professor, reads. “Facebook lets users as speakers communicate quickly and effectively with friends and family, sharing personal thoughts, political ideas, and news stories.... And the alternatives offered by the [North Carolina Supreme Court] also interfere with people’s ability to read the content they want to read. The personal, political, and religious content a user seeks to access by using Facebook cannot be found on a recipe website."