In February, the U.S. Supreme Court heard oral arguments in Packingham v. North Carolina, which considers registered sex offenders' First Amendment right to freedom of speech. In 2002, Lester Packingham pled guilty to taking "indecent liberties" with a minor. He served a brief prison sentence and his profile was added to the North Carolina sex offender registry. Subsequently, the state passed a new law banning registered sex offenders from using social networking sites that allow users under age 18. In 2010, Packingham was arrested and convicted for violating this law after police discovered he was using Facebook under an alias.
Packingham appealed, claiming the law infringed on his right to free speech, and his conviction was overturned. However, the North Carolina Supreme Court reversed on the grounds that the state has significant interest in protecting minors and, therefore, is justified in banning sexual predators from social media sites on which they may come into contact with minors. The court also found that the law exercised a "limitation on conduct" rather than a "restriction of free speech." In Packingham, the state argued that sex offenders have access to ample alternative forms of social media that do not allow users under age 18, such as YouTube and Shutterfly. A collection of cases known as the "Doe cases" suggests this approach might work. In those cases, the federal courts of Nebraska, Indiana and Louisiana ruled that similar laws that banned sex offenders from using any form of social media went beyond merely preventing the solicitation of minors and unreasonably restricted use of the Internet, thus violating the First Amendment.
However, the sites that remain available to sex offenders in North Carolina are arguably less intended for socialization, whereas the social media outlets that have been prohibited more closely resemble online communities of personal networks, such as Facebook, Twitter and LinkedIn. This is important because restricting sex offenders' access to social media may increase the experience of societal exclusion that already challenges this population. Research suggests that feelings of marginalization and isolation can prevent sex offenders from successfully reintegrating into society and, in turn, increase their likelihood of reoffending. Access to social media, however, could allow sex offenders to connect with more expansive networks and counter the feelings of social exclusion that hinder rehabilitation. For instance, research on general population samples finds that Facebook use is associated with having larger and more diverse networks, a greater number of confidants, and more social support.
Contrary to public perception, recidivism rates are generally lower for sex offenders than non-sex offenders. Whereas limited contact with minors might reduce the risk of re-offense, social exclusion has the opposite effect. Policymakers should strive to design laws that enhance public safety while also protecting sex offenders' freedom of speech and access to online social networks. For example, some states have modified statutes that banned all sex offenders to instead ban only those whose offense was facilitated by the use of a social networking site. In 2012, Louisiana implemented a statute requiring sex offenders to indicate their status on their social media profiles, which provides the public with notice and gives them the opportunity to avoid contact. Psychological and legal researchers should evaluate which facets of the laws are most effective at both reducing recidivism and retaining the benefits of online social networks to ensure future policy achieves balance on this issue.
"Judicial notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
