While many claim the first social media company launched in 1997, the genre of sites did not really take off until 2002 with the launch of Friendster. In that same year a 21-year-old college student named Lester Gerard Packingham had sex with a 13-year-old girl and found himself a register sex offender. Both of these seemingly unrelated events, the launch of Friendster and Lester's guilty plea, together set off a chain of events that would culminate in an important ruling at the United States Supreme Court in the case of Packingham v. North Carolina. Could the State prevent someone from accessing social media?
In 2002, Lester Gerard Packingham — then a 21-year-old college student — had sex with a 13-year-old girl. He pleaded guilty to taking indecent liberties with a child and, because this crime qualified as “an offense against a minor,” he was required to register as a sex offender in his home state of North Carolina.
Eventually, having served his time, Lester was releases and went about the hard work of reacclimatizing to the word. One would like to assume he found himself a place to live, got a job, and tried to set his life on something resembling the normal track. As we all know, having a social media presence is one of those "normal things" people do. Per a Pew Research Center poll, around seven-in-ten Americans use social media to connect with one another, engage with news content, share information and entertain themselves.
Unfortunately for Lester this "normal thing" was not something he was allowed to do anymore.
Much to Lester's surprise, had he known about it, North Carolina had passed General Statute §14-202.5, which made it a "felony for registered sex offenders to access commercial social networking websites where a sex offender knew the site allowed minor children to become members or to create or maintain a personal web page." According to sources cited to the Court, North Carolina had prosecuted over 1,000 people for violating this law, including Lester, who was indicted after posting a statement on his personal Facebook profile about a positive experience in traffic court.m
Lester soon found himself arrested, tried, and convicted of having a Facebook profile! His attorney's made a motion to dismiss the indictment on the grounds that the charges against him violated the First Amendment. The argument raged until the United States Supreme Court finally granted cert and agreed to hear the case.
A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after (hopefully) reflection, speak and listen once more. The United States Supreme Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire. While in the past there may have been difficulty in identifying the most important places for the exchange of views, today the answer is clear. It is cyberspace — the vast democratic forums of the Internet in general, and social media in particular. Social media offers relatively unlimited, low-cost capacity for communication of all kinds, and social media users employ various websites to engage in a wide array of protected First Amendment activity on topics as diverse as human thought.
It is well established that, as a general rule, the Government “may not suppress lawful speech as the means to suppress unlawful speech” and, in that vein, the Supreme Court struck the North Carolina law down. The Court wrote in their opinion that "?Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke 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. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox"."
The Court overturned Lester's conviction and wiped it from his record, although not from the internet. "To foreclose access to social media all together", the Court opined, "prevent[s] the user from engaging in the legitimate exercise of First Amendment rights." Lester was once again a free man.
And, if you're curious, it does appear he has a Facebook profile now.
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