Sex Offenders & Social Media - A new Supreme Court Decision May Bring Change to Internet Restrictions

At Damore, Delgado and Romanik, we handle many cases involving sex offenses that, should the accused be convicted, require the accused to be labeled as a sex offender. This designation is essentially a life sentence (although you can challenge it 25 years after all sanctions are complete...) which forever brands an accused and sets them apart from "society" and consigns them to grim employment prospects As a sex offender, the accused loses many "rights" and "privileges;" in many states, including Florida, there are further restrictions on an accused's ability to travel, restrictions on where the accused can live (not near schools, day care facilities, etc.), mandatory registration and reporting requirements, and, of course, restrictions on acess to sexually stimulating material and the internet (the greatest source of pornography known to man). Restricting access to internet and social media sites make modern life very difficult - in an age where even refrigerators are connected to the internet, it is very hard to life an unconnected life. But a new Supreme Court case may force re-examination of the restriction on sex offender's internet usage.

On June 19th, 2017, the United States Supreme Court decided Packingham v. North Carolina, 582 U.S.____(2017). In 2002, Packingham, a 21 year old college student, had sex with a 13 year old victim. As part of his sentence, he was required to register as a sex offender and prohibited from accessing "commercial social media networking sites." In 2010, after Packingham was successful in having a ticket dismissed in traffic court, he logged onto his Facebook account and proclaimed that "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!" As a result of this post Peckingham was indicted and ultimately convicted for a law in North Carolina prohibiting the access of commercial social media network sites. He appealed to the Court of Appeals of North Carolina which struck down the law but ultimately the North Carolina Supreme Court reversed and held that the law was, "constitutional in all respects."

The foundation for the ruling of SCOTUS in Packingham rests squarely on a First Amendment analysis. The Court reiterated that a fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers "relatively unlimited, low-cost capacity for communication of all kinds." As stated in Reno v. American Civil Liberties Union, 521 U.S. 844. More critically, "Social media allows users to gain access to information and communicate with one another on any subject that might come to mind. With one Broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights. Even convicted criminals, and in some instances especially convicted criminals, might receive legitimate benefits from these for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives." Packingham.

While it would be seemingly reasonable to place some specific or narrowly tailored restrictions on internet use by an offender (children specific sites, certain categories of pornography) the Court here took issue with the alarming broadness of North Carolina's law. Specifically, it was the definition of a "commercial social networking website" that led to the ruling here. The Court defined such a website and meeting four criteria. First, the website must be "operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the website." Second, the website must "facilitate the social introduction between two or more persons for the purposes of friendship, meeting other persons or information exchanges." Third, the website must "allow users to create web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal web page by the user, other personal information about the user and links to other personal web pages on the commercial social networking web site of friends or associates of the user that may be accessed by other users or visitors to the website. " Lastly, the website must "provide users or visitors mechanisms to communicate with other users such as message board, chat room, electronic mail or instant messenger."

It is easy to see, as the Court did, that such a broad definition would incorporate a massive number of sites. As the intended protection of the law was to prevent commission of sex crimes against chidren, innocent and useful sites should not be able to be defined the way the North Carolina law did. To illustrate the effect, the Court analyzed how use of such websites as Amazon, The Washington Post and Web MD would run afoul of the law. Protecting children against any criminal act is an area in which all States should seek to impose strict laws and regulations. That being said, we cannot allow the erosion of fundamental constitutional amendments and protections with over broad and vague legislation such as this law in North Carolina. A delicate balance is necessary and it was achieved here by the Court in the interests of offenders, children and the First Amendment. The opinion of the Supreme Court is the law of the land and it can reasonably be concluded that restrictions imposed by the State of Florida may be null and void.

If you are currently on probation for a sexually motivated offense, the Packinham case may provide you some relief and we welcome a chance to review your situation. There is no charge for a consultation on criminal defense matters. At Damore Delgado & Romanik, we have decades of experience representing individuals accused of sexually motivated offenses. We evaluation our cases from a holistic perspective using an array of experts, including child psychologists, mental health experts, and digital forensic investigators, to prepare aggressively for hearings, trial or sentencing. We are proud of our excellent outcomes and, if you are currently charged with or have been convicted of a sex offense, we would be honored to provide you with accomplished, aggressive and experienced legal representation from a team of attorneys lead by a board certified criminal trial attorney. We understand the complexities of sexual offender sentencing, probation requirements and the risks of involuntary civil commitment.