Updating the Social Network: How Outdated and Unclear State Legislation Violates Sex Offenders’ First Amendment Rights
By Elizabeth Tolon
Readily available on computers, phones, tablets, or television, social media has become a necessary platform of expression for many. But, for others, social media is an inaccessible tool whose very use has criminal repercussions.
To protect innocent children, many states have enacted legislation restricting sex offenders’ access to social media. Unfortunately, this legislation is often outdated, overly restrictive, and unconstitutional under the First Amendment. North Carolina has recently attracted national attention, as its statute highlights the potential constitutional issues states face in drafting such legislation. To avoid the constitutional concerns that North Carolina faces, state legislators must draft statutes narrowly and provide ample alternative channels of communication for sex offenders.
This Note first analyzes current state legislation restricting sex offenders’ social media usage, focusing specifically on North Carolina’s statute. It then discusses the U.S. Supreme Court case Packingham v. North Carolina, challenging the constitutionality of North Carolina’s statute under the First Amendment. This Note explains how Packingham offers the Supreme Court an opportunity to clarify and instruct states on how to properly draft future legislation. Specifically, the Court must address what constitutes a narrowly tailored statute and what type of alternatives must be available for sex offenders whose social media access is restricted. This Note ultimately concludes that North Carolina’s statute is not narrowly tailored and does not leave ample alternative channels of communication. To help avoid these issues in the future, this Note concludes by suggesting a model statute for constitutionally restricting sex offenders’ social media use.