Supreme Court Strikes Down State Law Barring Access to Social Media by People with Certain Criminal Convictions

The First Amendment to the U.S. Constitution guarantees the right to freedom of speech. Generally speaking, the government cannot restrain people’s speech through criminal penalties. Certain forms of speech, however, are not protected. The government may enact restrictions on speech when the restriction is closely related to a legitimate government function or public interest, and it is narrow enough to serve that purpose without burdening other rights. The U.S. Supreme Court recently ruled on a challenge to a state law that made it a felony for individuals with certain criminal convictions to use social media networks. No comparable restriction exists in Texas criminal statutes, but the ruling could still have an impact here. The court found that the statute violated the First Amendment, since the state could achieve its purpose in other, less restrictive ways. Packingham v. North Carolina, 582 U.S. ___ (2017).

The law at issue in Packingham deals with registered sex offenders. The precise definition of a registered sex offender varies from one state to the next, and it is frequently subject to amendment by lawmakers. Politicians often couple the term with an express or implied statement about danger to children. Protecting children from harm is a legitimate public interest, but the extent to which lawmakers may go in furtherance of this interest is a matter of ongoing debate.

Under § 14-202.5 of the North Carolina General Statutes, a registered sex offender commits a felony if they access a “commercial social networking Web site” of which they know minors can become members. The statute defines “commercial social networking Web site” very broadly based on four criteria:  the site (1) obtains revenue from membership fees or advertising; (2) “facilitates social introduction” between people; (3) allows the creation of individual pages that could contain personal information; and (4) enables users to communicate with one another.

The defendant pleaded guilty in 2002 to the offense of “indecent liberties” involving a minor, requiring him to register as a sex offender. This was six years before the state enacted the social media statute. In 2010, the defendant posted a brief message on the social media site Facebook about defeating a traffic ticket. A police officer monitoring social media use by registered sex offenders saw the post, resulting in a grand jury indictment for a violation of § 14-202.5. Throughout the trial and sentencing, the state never alleged that the defendant used social media to contact a minor or commit any other illegal act.

In an 8-0 ruling, the Supreme Court struck down § 14-202.5 as a violation of the First Amendment. The opinion uses sweeping language to describe social media as one of “the most important places…for the exchange of views.” Packingham, slip op. at 5. It notes the central role of social media in numerous areas of daily life, calling it a “principal source[] for knowing current events, checking ads for employment, [and] speaking and listening in the modern public square.” Id. at 8. The court held that “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.” Id.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

If you are facing charges for an alleged criminal offense, an experienced and skilled cyber crime lawyer can help you understand your rights and prepare a strong defense for your case. Michael J. Brown has defended clients in West Texas criminal cases for more than 20 years. Contact us online or at (432) 687-5157 today to schedule a confidential consultation to see how we can assist you.

More Blog Posts:

Social Media, Digital Technology Create Unexpected Criminal Complications for Some Young People, Texas Criminal Lawyer Blog, January 25, 2017

Supreme Court Reverses Conviction for Threats Made on Facebook, Finding Statute Requires Intent to Intimidate, Texas Criminal Lawyer Blog, September 9, 2015

Restrictions on Parolees’ Social Media Access Are Constitutional, Court Says, Texas Criminal Lawyer Blog, December 17, 2013


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