Should Facebook be Accessible to Sex Offenders? A First Amendment Analysis

The First Amendment of the U.S. Constitution states that “Congress shall make no law...abridging the freedom of speech.”[1] The Supreme Court has typically interpreted the term “speech” to incorporate a broad range of expressions, including the use of Internet.[2] However, the increasing use of the Internet and social media sites has led to debate as to what constitutes free speech in the digital age and if digital platforms should be made accessible to the entire public. Currently, Facebook’s accessibility to the public has been contested in relation to the right of sex offenders to use the site, as limiting their access conflicts with freedom of speech protected under the First Amendment.

Facebook, one of the most widely-used social media sites today, addresses its users’ rights to freedom of speech under its “Community Guidelines.” The company’s user guidelines specify that the site does not allow content “that threatens or promotes sexual violence or exploitation” to be published, which “includes the sexual exploitation of minors, and sexual assault.”[3] Sexual exploitation is defined to cover “solicitation of sexual material, any sexual content involving minors, threats to share intimate images, and offers of sexual services.”[4] In these respects, Facebook’s guidelines align with the Supreme Court’s 1982 ruling in New York v. Ferber, which concluded that the states have the right to curb freedom of speech in cases of sexual exploitation involving minors, such as with the promotion of child pornography.[5] Thus, the Supreme Court recognized that free speech does not overrule an obligation to protect minors from sexual exploitation. Similarly, Facebook also restricts freedom of speech as it relates to these cases by prohibiting people who have committed a sexual offense from joining its platform altogether.[6] Because social media sites are owned by private corporations, these corporations have an unchecked power to restrict speech and prohibit users from interacting with others on their platforms. Although the public is guaranteed a right to speak freely both online and offline under the First Amendment, on social media sites specifically, the site owners have the agency to decide who has the right to speak and interact with other users online. Because Facebook is a privately-owned social media site, it is able to enforce even stricter limitations on freedom of speech than the Supreme Court.

Facebook’s prohibition of sex offenders joining its platform was the central issue under debate in the 2017 Supreme Court case Packingham v. North Carolina. Lester Packingham was a North Carolina resident who had been convicted of sexual assault in 2002. Despite his status as a sex offender, Packingham registered as a user on Facebook and was noticed by authorities after he wrote a post in 2010 concerning a traffic ticket he received. Though his post may have seemed commonplace, his activity on the site violated Facebook’s user guideline that prohibits sex offenders from registering and, more importantly, the North Carolina statute that prevents sex offenders from using social media sites heavily trafficked by teenagers. Packingham’s case was brought before the Supreme Court, which unanimously voted in Packingham’s favor, overruling North Carolina’s statute as unconstitutional. In their eyes, the issue of sex offenders’ social media use was not sufficiently “necessary and legitimate” to justify such a broad infringement on sex offenders’ First Amendment rights. At the time, other states, such as New Jersey and Louisiana, had statutes similar to North Carolina’s, which banned newly-released sex offenders from using social media platforms. After the court’s challenging of the statute in the Packingham case, Louisiana had revised its statute to feature a less restrictive ban on specific uses of social media by sex offenders, mandating that sex offenders state their criminal status on their pages instead of enforcing a blanket ban on social media use. Louisiana lawmakers had decided that this more limited scope was a better social media policy to remove sex offender profiles by ‘tagging’ those whom the site failed to promptly remove.[7] In the wake of Packingham v. North Carolina, more narrowly tailored laws such as that which was previously enacted in Louisiana may point to more successful and constitutional alternatives.

It is critical to note that Packingham did not act in a sexually inappropriate manner on Facebook or in any way violate the site’s Community Guidelines as they relate to sexual exploitation. The only issue at hand was his usage of the site as a convicted sex offender. Justice Kennedy, who stated the majority opinion, explained that social media sites such as Facebook facilitate the flow of public speech in a way that makes them a sort of public forum. Thus, for a state to prevent one of its citizens from engaging in this sort of public forum altogether–not just when they are violating laws about interaction with minors–is to unconstitutionally limit their free speech.

Although he agreed with Kennedy, Justice Alito brought up a significant point: sites targeted towards teenagers may be reasonable places from which to ban sex offenders. This is similar to how physical public spaces that are predominantly occupied by minors, such as schools and childcare centers, ban sex offenders from entering their premises or living within a close radius. In physical public spaces, physical safety is prioritized over free speech. Applying that logic to online sites, it would seem reasonable to prioritize safety over free speech. However, since minors only make up 6.8% of Facebook users, this proves why it may be deemed unconstitutional to prohibit sex offenders from registering for the site, as Facebook users are predominantly not minors.

With the rising popularity of online social media platforms, such as Facebook, free speech on these sites has become an intensely-debated issue. Notably, Facebook restricts freedom of speech on its site by preventing sex offenders from registering as members. However, similar state level restrictions that prevent sex offenders from accessing social media sites have been challenged as unconstitutional for unduly limiting freedom of speech. In the case of Packingham v. North Carolina, the Supreme Court did rule that the state statute prohibiting sex offenders from registering on Facebook was unconstitutional for its restriction of free speech. However, for future cases, the Court also recognized that there may be a need to prevent sex offenders from accessing sites predominantly trafficked by minors, which further complicates the issue of free speech for sex offenders on social media sites.

[1] U.S. Const. amend. I.

[2] to id 1.

[3] “Community Standards.” Facebook. 2018. https://www.facebook.com/communitystandards.

[4] Ibid.

[5] New York v. Ferber, 458 U.S. 747 (1982).

[6] “Terms and Conditions.” Facebook. 2018. https://www.facebook.com/terms.php.

[7] Michael Martinez. “New La. Law: Sex Offenders Must List Status on Facebook, Other Social Media.” CNN. June 21, 2012. https://www.cnn.com/2012/06/20/tech/louisiana-sex-offenders-social-media/index.html.