Court's Un-Common Sense on Sex Offenders

      The Supreme Court hit a home run in First Amendment terms with its unanimous decision to strike down a North Carolina law that banned convicted sex offenders from accessing commercial social networking sites used by minors for personal profiles or the like. But the court's decision in Packingham v. North Carolina was more than a free-speech victory. The decision also injected some uncommon good sense into the  debate driven generally by irrational panic and flawed statistics over how the criminal justice system should deal with sex offenders.
      As a First Amendment case, the court had no difficulty whatsoever in ruling North Carolina's social media ban fatally overbroad. But Justice Anthony M. Kennedy's opinion for a five-justice majority charted a new path for the First Amendment by declaring social media to be the 21st century equivalent of the free speech-protected public square. Banning sex offenders from such sites as Facebook and Twitter prevented them from "the legitimate exercise of First Amendment rights," he wrote.
      The ban also made no sense as penology, Kennedy explained. "Even convicted criminals — and in some instances especially convicted criminals — might receive legitimate benefits from these means for access to the world of ideas," he wrote, "in particular if they seek to reform and to pursue lawful and rewarding lives."
      As with so many free-speech cases, the government's challenged policy was blatantly irrational in the specific case before the court. Lester Gerard Packingham Jr. —  known to friends and family as J.R. — was no sexual predator even when he pleaded guilty to indecent liberties with a 13-year-old back in 2002. And the Facebook post that landed him in legal trouble again in 2010, long after his probation had ended, was no sexual come-on but merely a playful celebration of having beaten a traffic ticket.
      North Carolina had been one of the first of the states back in 2008 to craft a law aimed at preventing the admittedly common use of social media for sexual abuse and victimization of minors. Within the span of a few years, most of the states had adopted disclosure as a preventive policy. Sexual offenders, registered with the state under laws on the books throughout the country, were required to disclose their Internet identifiers to authorities as a safeguard of sorts against improper behavior on the 'Net. Some of those laws were upheld in court, others struck down.
      The Tarheel State was one of two states to adopt a social media ban instead. Louisiana's law was struck down in 2012. The North Carolina law, known as section 202.5, made it a felony for a registered sex offender to access a commercial social media web site if he knew it allowed use by minors for personal profiles and two-way communication. Significantly, the ban applied to any use of the site, not specifically to posts aimed at or communications with minors. As Packingham's lawyer told the Supreme Court during oral arguments, he risked violating the law for doing nothing more than responding on Facebook to any of the posts discussing his case.
      Packingham was a 21-year-old college student when he pleaded guilty to the reduced sex offense count back in 2002. The facts of the case were kept off public records, but the judge evidently viewed the offense as minimal. He suspended Packingham's six- to eight-month prison sentence. "No one ever thought he was a pedophile," according to David Goldberg, the Stanford law clinic instructor who represented Packingham at the Supreme Court.
      Convicted in 2012 under section 202.5, Packingham again was given a suspended sentence. He had challenged the law as unconstitutional before trial in tandem with a second defendant, Christopher Johnson, charged under the law. Johnson told the court that he had been fired from an IT consulting job because it required access to social media. Goldberg said that Packingham has used his graphic design degree to help with his church's web site but that the social media ban has held him back in career terms.
      The sex offender policies adopted over the past two decades have to some extent been based on fake data. Law enforcement officials, lawmakers, and judges all the way up to the Supreme Court have accepted as scientific truth a false myth that sex offenders have a high degree of recidivism — that is, repeat offenders.
      The myth appears to be traced back to an article in a non-peer reviewed popular magazine, but has shown up in, among other places, Supreme Court opinions. The myth is so strong that Justice Sonia Sotomayor, no dupe for law enforcement, referred to it as fact during arguments in Packingham's case. Scientific studies reviewed in a Justice Department report in 2001 found relatively low rates of recidivism among sex offenders compared to other offenders. The studies indicated a range between 10 percent and 29 percent for child molesters with female victims and between 13 percent and 40 percent for child molesters with male victims.
      Tellingly, the North Carolina legislature approved section 202.5 unanimously with support from the then Democratic attorney general and the then Democratic governor. At the Supreme Court, none of the justices found the law constitutional and five of them rejected it as senseless public policy. Goldberg said that Packingham's immediate response when he heard the news of the decision was a single word: "Hallelujah." Amen.