by Bidish Sarma. Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.
Near the end of the term, the Supreme Court handed down its decision in Packingham v. North Carolina. The outcome was a slam-dunk victory for Mr. Packingham—a registered sex offender—and proponents of robust free speech protections around the country. The Court left no doubt about its commitment to protecting the First Amendment (all eight presiding justices agreed that the law at issue was unconstitutional), but it sent mixed signals about whether it would author a new chapter in its dealings with individuals convicted of sex offenses. This is an increasingly important question because for many years now sex offenders have been the target of unique, restrictive and hyper-punitive legislative schemes that raise deep constitutional questions. If the Court ducks these questions, similarly dubious laws may be used to target other groups, including individuals who have committed no crimes at all. Nobody seriously questions a legislature’s interest in protecting individuals from sexual violence. But, the time has come to ask whether society’s “war” on sex offenders who have already completed criminal sentences has gone too far.
Packingham involved a North Carolina statute that prohibited registered sex offenders from accessing an astounding range of websites (including news websites, WebMD and Amazon). The defendant was arrested for violating the law after he posted a message on Facebook praising God because a court had dismissed a traffic ticket without imposing any fine or other punishment. In striking down the sweeping restraint on internet use, Justice Kennedy’s majority opinion acknowledged the state’s interest in preventing sex offenders from using technology to facilitate crimes, but held that the “statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.” The law’s breadth and the Court’s robust protection of free speech may best explain the result. Thus, Packingham may well be “the rare case” in which the Supreme Court rules in favor of sex offenders.
If, however, the Court is more broadly worried about laws that may infringe on the rights of people who have been convicted of sex offenses, the First Amendment is not the only amendment that requires judicial enforcement. Justice Kennedy’s opinion hints that the justices in fact harbor concerns. In a parenthetical note, the decision referred to “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” and observed that this fact is “not an issue before the Court.”