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Sex offenders and the First Amendment

I have a Facebook profile, but I haven't been on it in months.  In keeping with my core philosophy that It's All About Me - further evidence of which is that I'm beginning a post on a Supreme Court decision by talking about myself - I find it difficult to get interested in other people's pictures of where they just vacationed, or their baby, or their dog.    

Lester Packingham learned to his sorrow that he had a better reason to stay off Facebook than a self-centric view of the universe.  After beating a traffic ticket, he triumphantly posted on his Facebook page,

Man God is Good! How about I got so much favor they dismissed the ticket before court even started?  No fine, no court cost, no nothing spent. . . . . .Praise be to GOD, WOW! Thanks JESUS!

A problem:  several years earlier, Packingham, then a 21-year-old college student, had sex with a 13-year-old girl, resulting in his conviction of a sex offense.  His post violated a North Carolina ordinance which made it a crime for a sex offender "to access a commercial social networking Web site where the sex offender knows that the site per­mits minor children to become members or to create or maintain personal Web pages."  The North Carolina Supreme Court rejected a constitutional challenge to the law, and so up it went to the Supreme Court to determine whether the statute accorded with the First Amendment.

Make that a "No."

All eight members of the Court - oral argument was held before Gorsuch took his seat, so he didn't participate - agreed on that. 

Kennedy's opinion for the Court looked like it could've been written by Mark Zuckerberg.  Noting that traditionally "a street or a park is a quintessential forum for the exercise of First Amendment rights," now the "most important place for the exchange of views ... is cyberspace - the vast democratic forums of the Internet."  The opinion notes that even under intermediate scrutiny, the government must still show that the statute is "narrowly tailored to serve" important governmental blah blah blah drone drone drone.

I mean, why are we talking about the law?  The greatest mysteries of the last century are what happened to Amelia Earhart, how Donald Trump got elected president, and how four people who studied the US Constitution in law school and found themselves sitting on the North Carolina Supreme Court could decide that the First Amendment permitted them to punish sex offenders who had Facebook pages.

There are some takeaways from the decision.  One is that it demonstrates the importance of amicus briefs.  The Electronic Frontier Foundation filed one that was cited by both the majority opinion and the opinion concurring only in judgment, authored by Alito and joined by Thomas and Roberts, noting that the state statute could criminalize someone signing on to Amazon, the Washington Post website, or WebMD.

Why didn't the three join in Kennedy's opinion?  Because of its "undisciplined dicta."  The focus of Alito's criticism is Kennedy's line about cyberspace being "the most important place for the exchange of views," because Alito fears that if true, "States may have little ability to restrict the sites that may be visited by even the most dangerous sex offenders."  The difference between public parks and the Internet, of course, is that while what happens in a park is open to observation by others, what happens on the Internet often isn't.

What's important to remember is that we're talking about sex offenders.  Both opinions inveigh about the dangers and potential harm they pose even after release from prison, and the need to monitor them to make sure they commit no further abuses.  Alito even trots out Kennedy's line from a 2002 opinion which claims that sex offenders "are much more likely than any other type of offender to be arrested for a new rape or sexual assault"; elsewhere in the same opinion, Kennedy asserted that "the rate of recidivism of untreated offenders has been estimated to be as high as 80%." 

Wow!  That's really bad, or would be, if the figures weren't completely bogus.  As explained in a recent NY Times article, Kennedy's figure was based on a 1986 article in Psychology Today, a mass market magazine.  The author, who ran a counseling program for sex offenders, offered no support for his assertion, nor any for his claim that those who had undergone his program had a substantially lower recidivism rate.

The fact that the source came from a non-scholar non-researcher trying to drum up business in an article in a non-peer reviewed magazine has not deterred other courts from repeating the statistic, or Kennedy's statement from an opinion a year later that the rate of recidivism of sex offenders is "frightening and high."  (A search in my BFF Lexis tells me that the latter phrase appears in 111 cases.)  As the article notes, though, there may be cracks in the wall:  Last year's 6th Circuit decision in Doe v. Snyder, which I discussed at length here, noted the "the significant doubt cast by recent empirical studies" on the claim.

But Kennedy throws an interesting tidbit into Packingham:

Of importance, the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court.

I have no idea what that means.  A sex offender is "subject to the supervision of the criminal justice system."  If you're a sex offender and don't show up for your required registration, you're not going to wind up in small claims court.

But any idea that Packingham heralds a softening of laws pertaining to sex offenders - no pun intended - is probably wishful thinking.  The more likely response is that provided by the Kentucky Attorney General in an op-ed.  Noting that the law the Supreme Court struck down in Packingham is "strikingly similar" to Kentucky's statute, the AG bemoans the "serious problem for law enforcement who seek to protect children from sexual predators" that Packingham creates, and pledges to work with the legislature to draft a law that with "protect Kentucky children and their families" while also passing constitutional muster. 

Nobody ever lost an election by being hard on crime, and when it comes to the crime being a sex offense involving children, make that a double.


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