Packingham case asks: Is First Amendment negotiable?

By Lenore Skenazy . . . 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.

Lenore Skenazy, author of the book and blog “Free-Range Kids,” is a contributor at Lenore is also the 2015 recipient of NARSOL’s Braveheart Award.

Original source attribution is given to the New York Post.

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18 Thoughts to “Packingham case asks: Is First Amendment negotiable?”

  1. AvatarT

    So let me get this straight all registrants being cutoff from society because they are a risk to the public, force to comply with various strict ordinances that are extremely counterproductive, mandatory requirements to be on public notifications claiming this will increase public awareness and safety which is nothing more than exploitation of citizens for the things they’ve done and claim registrants will reoffend in the future just to make their lives miserable. Shouldn’t this be a human rights issue?

    1. AvatarJeremy

      This is fascism 101. First lesson: Pick an extremely disfavored population to start denying rights to. Once the public accepts that, move to the next disfavored population. By the time the public catches on to what’s going on, it’s too late.

    2. AvatarLin

      “There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.”

       Charles De Montesquieu

      I printed this and had it in my house up until I moved (haven’t unpacked it yet). Some day, I’m going to have it put on a proper plaque. What a wise man Mr. De Montesquieu was. 

  2. AvatarRich

    What about anonymous free speech also? Im Alabama, all email identifiers must be registered. God forbid should a sex offender speak out against the lies spoken by a county sheriff. There would probably be a price to pay.

    1. AvatarNH Registrant

      IN New Hampshire, we have to not only register our email identifiers, but every identifier we use online + where we use them. Every single one.

  3. AvatarEmpirical evidence rules the day

    I have not read the transcript of the oral arguments (may not be available yet), but understand the court’s data misunderstanding from moons ago of recidivism rates was addressed in paper briefs supplied, which should provide more than enough thought on the mistake made on baseless data. Excellent, most excellent!

    1. AvatarJeremy

      They are available on the US Supreme Court website. I have read the oral arguments and many of the briefs submitted. The “frightening and high” assertion did not come up in oral argument, but the briefs are very well written in support of our cause. The opposition’s briefs are written like an opinion article with multiple omissions and lack of evidence after making claims. Packingham’s response to the last brief by the state was probably one of the best legal responses I have read in years. In oral argument, the state was struggling with questions from the judges and one answer given when asked if this could apply to other criminal classes amounted to “but.. but… these are SEX offenders!” (paraphrased) I have no doubt the court will rule for Packingham.

  4. AvatarMitch Huested

    This is a clear 1st Amendment rights issue. Society has embraced technology and social media to such an extent that it has become a part of everyday life. Job postings, news reports, even simple communication among family members is now most often done through SM and Email. Many careers must be applied for through electronic means. The day of the paper resume` is over! Denying ANY former convicted person access to electronic communication of ANY kind only serves to further punish them and alienate them from society. After a person is released, I think the argument should also have included the 8th and 14th Amendments. Cruel and Unusual Punishment, and Equal Protection under the Law. Murderers and Meth manufacturers are free to search the internet at will. The whole idea of Megan’s Law is unconstitutional under these Amendments alone. But no one wants to be the face of Sex Offender rights.

  5. AvatarMitch Huested

    Does anyone else see the irony? Today, the State Department released a report saying “crackdowns” on free speech and internet activity are growing worldwide!

  6. AvatarSuicidal Sex Offender

    America! Land of the free! One nation under God! Yeah… Not anymore.

    Are you a murderer? No registry.
    Career scam artist? No registry.
    Convicted of assault and battery? No registry.
    Torturer of animals? No registry.
    Repeat DUI offender? No registry.
    Armed robber? No registry.
    Convicted of arson? No registry.

    But if a 16 year old girl pretending to be 18 on a dating app sends you naked pictures, and her mom finds out, you are suddenly the ABSOLUTE SCUM OF THE EARTH. You are now a sex offender… And in the eyes of the world, that means you are a CHILD MOLESTER/RAPIST (chi-mo or rape-o is what they will call you in jail or prison, while they harass and assault you).
    You are outcast from society for life for your ‘mistake’ and you will never be happy again. This will rip your family apart like a tornado of injustice, misunderstanding, and hatred.
    Thanks, America. I’m so proud.

    1. sandysandy

      Dear registrant; I want to respond, not to what you said, but to your screen name. I understand how you feel the way that your name indicates, but please know that there a people who care. We can’t change your conditions, but we understand your fury and your frustration and your hopelessness. Please do not give up that last bit of hope. Things are changing, yes, much too slowly, but they are changing. Please contact us at to talk about things. Above all, do not give up.

    2. AvatarH n H

      Sandy… I know exactly where he’s coming from. And something else, as Lin stated below: “There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.” That is precisely what our so called “justice” system has transformed into. And it is NOT going to change overnight, not in the next year, the next 10 years or this lifetime.

      The people who “care” for us are a select few personal friends or family, those are NOT the people who can make an actual difference in our lives. The people who can make a difference are the people who put us into this mess and their motives are to continue the sham of sex hysteria by making everything into a crime, and the registry. I’ve tried not to give up hope, but I’ve lost too much! I went through 4 attorneys, nearly $100k of my own money, my 401k is drained completely, trial, appeals, and over 5 years of house arrest, loss of a 20 yr career I had built my life around, a foreclosed house, and now I’m struggling to pay house arrest fees and barely making rent waiting for the courts to come after me. Then what? What do I do with all my belongings? I have no family who’ll pay for it to be in storage! All that hell means nothing cause because the clown judge that tried me was voted out, even though he admitted he may have made a mistake. But the appeals court literally made stuff up to keep the conviction, and the Supreme Court just said “denied”. I was sentenced to 2 1/2 years. So I know my letter is going to come any day and I’ll be sent away to prison! What do I, or anyone in such a situation have to look forward to? Any happiness at all? All the abuse of the court system, the humor found in destroying me? My life has been nothing but a feeding frenzy to the DA. I have learned once an individual hits 18, your life means absolutely NOTHING AT ALL! You’re no longer of use to the courts to be exploited for sex cases, so they go after you for being the aggressor to throw us on the sex registry and get jail time. They don’t care about the truth, all they care about are convictions and destruction of lives, if you’re over 18, you’re fair game.

      In my personal case, I was dealing with a serious midlife crisis/alcoholism and things got out of hand with a 15 yr old girl that refused to leave me alone when I demanded her to. In one brief second she shoved my hand up her shirt, lifted her bra up, and BAM! I immediately pulled my hand away in shock that she did that, getting away from her as she continued to try to wrap her arms around me, so yes, I attempted to defend the “indecent liberties” charge levied against me and told the truth on the stand. But hey, a touch is a touch, even if not motivated for sexual reasons! She’s a victim! Oh the humanity! That one second touch was gone over millisecond by millisecond by the DA until you’d think the entire event took an hour and had left her horribly disfigured for life. Despite the girl sitting there in the court room laughing her rear end off as I defended myself! Then the DA has the audacity to come out of the court room laughing hysterically with the father! What kind of sick twisted justice is that? It’s not about punishing actual harm. It’s about destroying a life for their own pleasure and gain of power! We all know it!

      Look at what the registry does to us to push us to suicidal thoughts! Look at the shame, the humiliation, the social outcasts we’re all made into. Then look up the video of Amanda Todd on YouTube being bullied at school, she killed herself for being bullied. Yet the view count by CBS News for her being stalked is nearly 5 MILLION. WHY? Cause she’s cute! Yet what does our lovely court system do to people after it twists and turns a stupid unwanted event into a conviction? Apparently being horny in this country is illegal, even if it’s not you who was and wind up on the receiving end! Even if a young girl sends a picture of herself in underwear. That will be twisted into the crime of the century as well! What the hell! So, when a registrant has enough of the bullying the courts have done to his/her life and commits suicide, or the registry lands some vigilant nut-job to the front door of an ex sex offender and is murdered, that’s all ok. There’s no outrage for them. And btw, where are all the 18 and 19 yr old girls who dated a younger guy on the registries? Don’t hear much about those cases!

    3. AvatarLin

      I know how you feel. While the injustice was performed on my developmental disabled grandson, I still feel 99% of effects. I know about the laughing prosecutor, the exaggerated stories of what actually happened. He told a joke, albeit, a poor joke, but a joke none the less and they still charged him with accosting a minor. He was only 19 and she 14. He has the maturity of a 14 year old. Not even considered by the courts.

      I’ve been through a lot of money myself trying to hire an attorney to do the right thing. His first one was incompetent and I believe he was afraid of the prosecutor. I even asked him if he was. The second was supposed to have filed a motion to have his plea withdrawn and never did. He then made up every story he could think of in order to buy time until I found the truth out. The third attorney attempted to have the judge place him on HYTA, but the judge said we came in at the “11th hour” and it was too late; although, my grandson’s probation was still active. Technically, we were not late and I don’t think that should have ever been said. They seem to only like technical when it’s in their favor.

      It’s like no one is even really watching what is going on. It’s like insanity on steroids and there’s no way out. The courts are just lying in wait for a violation so they can collect even more money. What a cash cow! I refuse to even refer to the courts as a “justice” system – it’s only a legal system.

    4. AvatarMaestro

      H n H,

      If you ever get sentenced to prison again on this case, you should SERIOUSLY read this posting of yours in front of the court since you DO get to express any thoughts prior to sentencing. I would.
      Doesn’t matter if it doesn’t “help” your case specifically. You have no idea the damage you’ll do to the DA for further cases they try to prosecute because attorneys always pull up arguments from other cases when they argue their side’s defense.

    5. AvatarH n H

      Well, I got my letter today. I won’t be on here next week, or perhaps this weekend. I’ll be gone for a few years, so you people on here best make the most out of getting some sanity to what the legislature views as being “criminal”. I have faith in you all!

      I hope my suggestion of making consensual sexual interactions between teenagers and people older into a civil matter is one which will be considered to be taken up as a cause. I further hope people wake up to the fact that our government (especially local) is completely nuts with prosecuting anything and everything under the sun if they can spin it their way in court. THAT needs to change!

      In the end, I sure would like to thank the state for over 5 years of house arrest, taking over $100k of my money, the 4 attorneys which sucked me dry, the judge which twisted the law into any manner possible to get a conviction, the girls involved for doing something I wasn’t even aware of, then just going along with the flow that I had somehow made it all happen. They are in their 20’s now, and having a good time. Yay for them.

      I’d like to thank the sex hysteria revolving around America which has made anything into a crime, even if you aren’t involved in making whatever happen.

      I would like to thank the legislatures who refuse to listen to reason and instead listen to emotionally angry parents, (unwilling or unable to control their daughters), to institute harsher and harsher laws thus making a monster out of anyone and everyone.

      I’d like to thank my bondsman who has cleared a cool $33k in house arrest fees and bond money, which made me foreclose on my house. I also want to thank my bank for screwing me out of my short sale on my house while it was being foreclosed on so they could squeeze another $2k out of me, even though I’d paid for the house nearly twice over.

      I’d like to thank the girls who put me here, and am very happy that they can now claim they are “survivors” of abuse which they can now use to get them more attention for being so strong. Abuse which never happened until the DA got his sick mentality into the mess.

      Lastly, I’d like to thank the detective which interviewed a 15 (almost 16)yr old girl as she said what happened was her fault and his reply to shut her up from telling the truth by telling her “You can dance in front of him naked all night long and that would be ok because it’s impossible for you to lead him on”…. (Yes, I have that in print). I know if I had said that to her and she did it, that would be a crime. But it’s ok for him to encourage such behavior.

      I want to thank the 4 or 5 judges which took so much pleasure in destroying my 20 yr career. I commend them for their dedication to twisting and fabricating events out of thin air to secure my conviction. Congratulations! You’re good!

      If I had the money, I’d like to buy a plaque for the DA to hang over his door that reads “Through this door lies the foundation for more misery, divorces, destruction, hatred and harm than ever thought possible”.

      The introduction into the sex offender world has helped me hate this life, and the problem here isn’t just the registry people, it’s the loss of seeing any good in people. It’s looking for the absolute worst, making a volcano out of an ant fart, and creating as much hysteria as possible because that hatred is popular and gains votes and power. Our government is to protect people. ALL people, black, white, young, old. People. That’s why we’re here on earth, to work together. So, any lawmakers reading this, think about what you do.

    6. AvatarMaestro

      If an under age teenager lies about their age and sends naked photos to you, that is in no way, shape or form YOUR mistake.
      The first thing some RSO’s have to STOP doing is stop cowering to the liberal leftists “victimization” by always taking the blame and apologizing for things we didn’t do INTENTIONALLY or with malice.
      Stop calling the lying teenagers “victims”. These “victims” carry on with their lives all hunky dory while we rot in prison, the registry and on probation being told how we can live when we get out of prison.
      Your “victim” can go on vacation to Disney World. Can you?

  7. AvatarRobert Curtis

    The TRUTH that NO news outlet dares to publish.
    How a registered sex offender got the Democrats to a super-majority and why.

    In April of 2011 the Orange County Supervisors passed an ordinance outlawing registered sex offenders from going to parks, beaches and harbors. This action hit me hard because as a parent I saved my son’s life twice once from drowning and once from choking. So, not only did the law violate my rights as a parent but also the safety of my child. The Republicans were on a march to do harm to both me and my family. Oddly I’ve always been a Republican. Come after me I can handle it but put my children in harms way this old soldier will fight back. Assemblyman Bill Brough with his AB-201 last year got me involved at the capital and on the ground in communities across the state.

    Because of the Republicans I harnessed all the hairdressers in certain battleground districts and purposed to get Democrats elected. My first efforts in OC were with Lisa Bartlett for supervisor… she was neck and neck with Robert Ming until I unofficially joined her team only 4 weeks before election…she won by double digits!!! “NEVER under-estimate the POWER of the mouth of a hairdresser!” …became my Motto. Next would be John Moorlach for senate. I asked Don Wagner (my assemblyman) to meet with me but as soon as he found out I was a registered sex offender he refused. When he ran for senate ALL the Republicans turned their collective backs on John Moorlach and funded Don Wagner over $500,000 to defeat John Moorlach (Bad call). In April 2011 the ONLY voice of reason over the parks bans was Supervisor Moorlach. So I stood in Don Wagner’s capital office and stated with a loud voice I was going to do everything within my power to keep him as my assemblyman…NOTE: I kept my word he did NOT win the senate. Congressman Ed Royce pushed a passport identifier bill (HR-515) for ALL registrants. It didn’t even get heard via committee. Josh Newman now is knocking on his door as a Democratic Senator because I harnessed all the hairdressers in his district to get him in. How can a democrat with so little political experience get elected in a Republican district running against a seasoned assemblywoman? NEVER under-estimate the POWER of the mouth of a hairdresser!!! Sharon Quark Silva is now an assemblywoman again…wonder why? The Republicans came after my position as a parent and the safety of my child. They made it personal. The ONLY reason I didn’t do more is because of Senator John Moorlach getting wind of my exploits by me telling him I will put the Republicans in California on the endangered species list… He said, “ROBERT What are you doing!?!?” He personally asked me to retreat my efforts and as per our friendship from the 8th of September on I did little campaign efforts, but the damage had already been done. So in a way the Democrats super Majority is due to the Republicans and my efforts against them. On May 8th 2012 I appeared before the OC Supervisors and presented under public comments my position. Supervisor Shawn Nelson got the wrong file from deputy staff and blasted lies about me and my conviction at the end of the meeting. My offense was a misdemeanor NOT involving a child in Nov. of 1999. The comments I made that day shook the place to the ground…they can still be viewed on the OC Supervisor website. After the grinder of probation/parole, therapy and time served registered sex offenders have ONLY a .6% recidivism rate according to the latest Department of Corrections report via the Sex Offender Management Board. So then why do politicians keep pushing harmful laws against these people? The low numbers are because of the systems we have that are working and the real hero’s are those professionals that drive that system…the parole and probation departments, the social workers and therapist these are the unsung hero’s that have help make this happen. Why politicians keep pushing harsh laws is because ANYTHING harmful to a registered sex offender is easily sold as public safety and for protection of children even when the recidivism rates are at an ALL-TIME low. In the history the deep south politicians tied young black male slaves to barn doors to be whipped to show the respectable people how they kept their slaves in line. Today we have a different kind of “Whipping-Boy” keeping that same kind of evil spirit alive. We finally have the perfect kind of Whipping-Boy…we have the registered sex offender. The new Whipping-Boy for votes! Who would dare oppose any actions against these pariahs? Look at SB-26 by Senator Connie Leyva. Now I can’t attend my child’s teacher conference or my son’s athletic events. REALLY? For those good Christians out there I give you Matt. 25:40 “What you do to the least of these my brethren you do it unto Me”, saith the Lord. Who in today’s society is more least than a registered sex offender? So yes I Am the cause of the Democrats having a super-majority but I seriously doubt anyone would dare print that truth.

    1. AvatarMaestro

      Robert Curtis….

      “the parole and probation departments, the social workers and therapist these are the unsung hero’s that have help make this happen…”

      Are you even remotely serious!? Probation and Parole officers will do whatever the legislature tells them to do in the law. And although I’ve never been on “parole”, I AM on probation, therefore I say this about both entities:

      Conditions of release are just that – conditions. Not LAWS. But these “officers” who dictate our lives will jump at the opportunity to put us back thru the court system ringer at the slightest “violation” of any of those conditions.
      How is going into a restaurant that happens to have a bar somehow now an “illegal” act? It isn’t. Nor is alcohol illegal. But I was violated 6 yrs ago for simply being in a restaurant that has a bar. No proof needed on the part of the probation officer that I even consumed any alcohol. All the court needs is their BS violation warrant.

      I am neither a liberal nor a conservative. I have agreements and disagreements with both sides.
      And if you think for one iota of a second that liberals/democrats don’t look down on sex offenders, brother, you’re delusional.
      Our former liberal democratic president signed the International Megan’s Law. Yeah. What a great thing those leftists are doing for us lepers of society.

      How about just being an independent? What do people have against that? Seems everyone would rather be puppets and programmed robots than to use their own brains and thoughts.

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