WASHINGTON (NEXSTAR MEDIA) — The Supreme Court will soon decide whether child sex predators have a constitutional right to operate social media accounts.
Lester Packingham is suing North Carolina over a state law passed in 2009 which prohibits registered sex offenders from being active on sites like Facebook and YouTube where social contacts are easily made.
He says the Tar Heel State’s blanket ban violates his First Amendment right to free speech.
Durham police caught Packingham when he celebrated a parking ticket being dismissed in court, posting under an alias, “Praise be to GOD! WOW! Thanks Jesus!”
Soon thereafter, police were knocking on his door with an arrest warrant in hand.
Packingham and his attorneys have been fighting the North Carolina law for five years. The North Carolina Supreme Court upheld the ban in November 2015.
Packingham will have his final day in court on Monday.
Sex offender could prevail
Parents worry about their children encountering predators online, and broadly applaud reasonable efforts to reduce associated risks, but the high court will grapple with the issue of the ban’s breadth.
An outright online ban could be interpreted as a “true scarlet letter” that excludes certain Americans from the virtual public square, says Rebecca Tushnet, professor of law at Georgetown University Law Center.
Tushnet explains that certain limits on free speech are unquestionably permissible, like a prohibition on the creation and dissemination of kiddie porn.
But once sex offenders have served their sentences and are no longer deemed an imminent risk, as in the Packingham case, “The court is probably going to ask, ‘Are there less restrictive alternatives than the law that’s being challenged that would achieve the state’s objectives in the same way?’”
Tushnet, who specializes in First Amendment issues, predicts, “I would expect they’d strike this down, because it is so far-reaching, and because it has such huge consequences for someone who may not be high-risk. It’s sort of treats them all the same.”
Rather than rubber stamping North Carolina’s ban, some scholars have suggested that the eight sitting justices will find a middle ground, wherein sex offenders are required to share their online passwords with probation officers who can keep a watchful eye on their activities.
This would work, Tushnet says, “Sort of like a parent might demand their child’s passwords as a condition. And that’s certainly less restrictive than saying that if you access Facebook at all you go to jail.”
SCOTUS conservatives could hold surprises
The SCOTUS bench is currently split four-four between conservatives and liberals.
The liberals (Ginsburg, Breyer, Sotomayor, Kagan) are customarily permissive on free speech issues.
The wildcard on Monday will be the conservatives (Roberts, Thomas, Alito) and the default conservative, Kennedy.
While many would expect the right-leaning justices to automatically rule against sex offenders like Packingham, they are known to break with law-and-order orthodoxy in First Amendment cases.
For example, in April 2010, with seven of the same justices in place as today, the court ruled in favor of purveyors of certain animal cruelty themed videos, saying they had a constitutional right to make the films, despite their depictions of dog fighting and sexual fetishes involving women “crushing” small animals.
The final opinion was a landslide, 8-1 in favor of the filmmakers. Samuel Alito was the only justice to dissent.
With that in mind, the court’s conservatives could very well find that state laws permanently barring all registered sex offenders from accessing social media to be overbroad and unduly restrictive.
Parents worry about safety
Children are becoming active on social media at younger and younger ages.
It’s no longer astonishing to see an eight-year-old holding their very own tablet and smartphone, fully capable of connecting them to the internet and all its accompanying dangers.
Attentive parents like Olly Moverley, a mother of three, do their best to head off the risks.
Moverley and her husband watch their 12-year-old daughter, Georgie, like a hawk. “She has her own tablet and then we get a download every week of what she’s been using, so we know exactly what she’s up to.”
In their home, Instagram is okay but Facebook is off limits.
While their pre-teen daughter complies with the rules, the Moverleys worry, as most parents do, that an ill-intentioned stranger could find and befriend their unsuspecting child.
“They shouldn’t be allowed on, but how do you police that? It’s impossible. Anyone can make up a name, an age, an address, and on they go,” worried Moverley.
The eagle-eyed mother said that’s why “we as parents have to take the steps to protect our children, but they [also] need to know what they’re protecting themselves from.”
Safety experts to parents: Get involved
“We say friend and follow your kids, but don’t stalk them online. If you stalk them, they’re more likely to go underground. So it’s a delicate balance, it’s a delicate dance,” explains Stephen Balkam, CEO of the Family Online Safety Institute.
Balkam would like to see more parents follow the lead of the Moverleys, staying vigilant and intimately involved.
“It’s a serious concern that parents are using digital devices as nannies, as babysitters” Balkam says. “We say no, you’ve got to do the job of parenting, which includes good old-fashioned human interaction.”
His advice requires that busy parents turn off their phones, lay down their laptops, and pay attention to their children. If something’s wrong, kids will give you clues.
Balkam, who sits on the safety advisory board at Facebook, also points out that in his opinion the online “predator fear” has been somewhat overblown by some in the media.
“You’re far more likely as a child to face child sexual abuse through, unfortunately, family, friends and trusted neighbors,” he said.
However, if a user does happen to find a sex offender on Facebook, there’s a simple form to complete and the account will be deleted.
Facebook is a private company and, as such, has the legal authority to exclude people it deems risky or inappropriate. Sex offenders fall into this group.
So while Lester Packingham fights to obtain social media rights, Facebook has made clear that he and others who have been found guilty of sexual crimes are not welcome on its family friendly site.
The Supreme Court will hear Packingham v. North Carolina on Monday at 11 a.m. ET.
Follow Chance Seales on Twitter: @ChanceSeales