Do Sex Offenders Have Free Speech?

WHEN Lester Packingham beat a traffic ticket a few years back, he couldn’t contain his joy. He went online and wrote, “No fine. No court cost, no nothing spent. Praise be to GOD, WOW! Thanks, JESUS!”

For this he was arrested and convicted of a heinous crime: using Facebook.

Who is legally forbidden to use Facebook? In North Carolina and a handful of other states, a registered sex offender. In 2002, Packingham, then 21, pled guilty to two counts of statutory rape of his girlfriend, 13 (he claimed he did not know her age). This netted him a suspended sentence and 30 years on the registry.

His case made it to the Supreme Court Monday, where he argued that not being allowed on social media violated his right to freedom of expression.

The judges seemed to grasp the profound role of social media in our lives today. Justice Elena Kagan said that a person banished from major platforms like Facebook is effectively shut out of society.

“This is the way people structure their civic community life,” she said. Not only can the banished not communicate the way everyone else does, “they cannot go onto the president’s Twitter account to find out what the president is saying.” (I imagine her mentally inserting a winking emoji here.)

For its part, North Carolina’s lawyer Robert Montgomery insisted that sex offenders should be barred from any Internet sites minors might use, just as they’re barred from playgrounds and parks. “This Court has recognized that they have a high rate of recidivism and are very likely to do this again. Even as late as 20 years from when they are released, they may recidivate.”

It’s true the court recognized this “high rate of recidivism,” but it’s also true that it was mistaken. As the scholar/lawyer Ira Ellman wrote in a stunning expose a few years ago, the “frightening and high” recidivism risk cited by Justice Anthony Kennedy in 2002 — a rate the justice said “has been estimated to be as high as 80 percent” — was based on what turned out to be a single article by a single therapist in an old copy of Psychology Today.

The therapist didn’t even cite any evidence. Actual studies have found the sex-offender recidivism rate to be about 5 percent.

So Montgomery’s argument is based, in part, on a falsehood. But the question remains: Do sex offenders have a right to be part of the world at all?

Montgomery argued that they could lurk online, gathering information on potential victims. At which point Justice Stephen Breyer seemed to tease the man:

Breyer: “Can you have a statute that says convicted swindlers cannot go on Facebook — or cannot go on the Internet on sites that tell people — that tell people where to gather to discuss money?”

Montgomery: “I’m not sure about that.” Breyer: “We can think of — you know, pretty soon, you’re going to have everybody convicted of different things not being able to go anywhere and discuss anything.”

It’s true that people can and do discuss anything and everything online, nice and nasty. That is precisely why keeping sex offenders off social media opens the door to keeping almost anyone else off it for almost any reason.

And yet, the justices seem to be mulling, the Internet is the new town square. In the real-world town square, even people with criminal pasts are allowed to come and go, speak their mind and resume their lives. They can stand on a soap box and present their case for changing the laws that, for instance, turn an “I beat my traffic ticket!” status update into a crime.

Banning those found guilty of sex offenses from social media “forbids speech on the very platforms on which Americans today are most likely to communicate, to organize for social change, and to petition their government,” said Packingham’s lawyer, Stanford Law’s David Goldberg.

But of course, if your goal is to outlaw freedom of speech and assembly, it’s brilliant to start with a reviled group. “First they came for the sex offenders,” and so on and so on.

The Supreme Court is expected to rule on the case by the end of June.