On June 19th, the United States Supreme Court issued a decision in Packingham v. North Carolina (you can read the full opinion here), where a unanimous Supreme Court reversed the decision of the North Carolina Supreme Court, which affirmed the criminal conviction of Lester Packingham — an individual who was required to register as a sex offender in North Carolina. North Carolina, like Kentucky, had a statute that banned anyone on the registry from using a wide variety of social media outlets. Mr. Packingham posted to his Facebook page a message of gratitude that a traffic ticket of his was dismissed — this came to the attention of authorities and he was convicted of violating the ban.
The North Carolina Supreme Court affirmed his conviction after the N.C. Court of Appeals reversed it on First Amendment grounds. Then, last week, the U.S. Supreme Court held that the statute banning Mr. Packingham from using social media was unconstitutional. Here’s the key part of the Court’s opinion:
Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. Supra, at 5. By prohibiting sex offenders from using those web- sites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing cur- rent 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.” Reno, 521 U. S., at 870.
In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.
The statutes that were struck down in Packingham were in many ways much less restrictive than the ones that we face in Kentucky — for example, the ban in N.C. included exemptions for many sites, whereas the ban in Kentucky has none.
WHAT DOES THIS MEAN FOR KENTUCKY?
Leadership in KYCFR is involved in a § 1983 federal civil rights lawsuit about the social media ban in Kentucky, along with other internet-based restrictions. We hope to have a decision soon, but for the time being the best advice is to continue to stay off social media until we have a decision construing the Kentucky statutes in light of Packingham.
If you do, be aware that there are other aspects of Kentucky’s law that are not addressed by Packingham, such as the requirement to register, on or before the date of use or creation, online identifiers (which would presumably also include newly-legal access to social media).
If you have questions, please contact us, and we will keep this site updated as new information becomes available.