Editorial: The Supreme Court is skeptical about an Internet ban for sex offenders

Society rightly is concerned about the possibility that convicted sex offenders — even those who have served their sentences — might prey on children in the future. But does that concern justify banishing them from vast stretches of the Internet that have become the contemporary equivalent of the public square?

We don’t think so, and judging from their comments at an oral argument in a North Carolina case this week, neither do most members of the Supreme Court.

On Monday the court heard arguments in the case of Lester Packingham, who was 21 when he pleaded guilty in 2002 to taking “indecent liberties” with a 13-year-old girl. Eight years later, Packingham logged on to Facebook to crow about having a traffic ticket dismissed. “No fine, no court costs, no nothing spent,” he wrote. “Praise be to GOD, WOW! Thanks JESUS!”

The problem was that Packingham was a registered sex offender, and therefore he was prohibited under North Carolina law from accessing “any commercial social media networking Web site” that he knew didn’t restrict its membership to adults. A police officer traced Packingham’s post (despite his use of a pseudonym), and Packingham was convicted of a felony. He challenged his conviction on free-speech grounds.

At Monday’s argument, several justices seemed to recognize that access to social media sites like Facebook and Twitter isn’t just part of daily life in America; it’s also increasingly a channel for free speech protected by the 1st Amendment.

Justice Elena Kagan noted that President Trump isn’t the only politician who uses Twitter. She pointed out that “all 50 governors, all 100 senators, every member of the House has a Twitter account. So this has become a crucial — crucially important channel of political communication.”

Banning Packingham from Twitter and Facebook wasn’t like banning him from a children’s playground; it was more like banning him from the town square or the public park where political rallies are held. While it’s true that children might be there, there are plenty of other reasons — legitimate reasons — why a sex offender might be hanging around.

Justice Anthony M. Kennedy observed that “the sites that Justice Kagan has described and their utility and the extent of their coverage are greater than the communication you could have ever had even in the paradigm of [the] public square.”

Granted, Packingham’s expression of gratitude on Facebook for his dismissed traffic ticket wasn’t a political manifesto. But the 1st Amendment covers more than political speech; and had he been forced to pay the ticket and criticized the traffic court, that would have been political speech — and would have been forbidden under the North Carolina law.

From the back-and-forth at Monday’s argument it seems clear that North Carolina and other states will be allowed to enact “narrowly tailored” laws to police the use of the Internet by sex offenders without violating the 1st Amendment. For example, states would probably still be allowed to make it a crime for offenders to contact children online or access sites set up for a school or children’s play group.

North Carolina’s law goes much further, however, in prohibiting the use of social media for purposes that have nothing to do with the abuse or exploitation of children. Correcting such overreach is an important responsibility of the Supreme Court, especially when — as is the case here — a constitutionally flawed law is also politically popular.

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