Monday, June 19, 2017

Supreme Court Decides Sex Offender Social Media Use Is Free Speech: Why This Matters

Say What?

A sex offender posted a win in defeating a parking ticket, on Facebook where North Carolina forbids sex offenders from being on social media. He was arrested, and his case went all the way to SCOTUS. The best analysis I have seen for this so far is here.

In short, the Supreme Court decided unanimously in favor of the sex offender, ruling that his access to social media constitutes free speech and cannot be restricted. While I am still working through the decision in its entirety, you can read the complete decision and an outline of the case.

What Does This Mean?

This ruling means, to quote the decision, "...the State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of modern society and culture." The decision was not limited to social media, and the decision essentially holds for the entire internet, insofar as it is used for free speech. While I am no legal expert, this ruling may well set the stage for a number of internet and technology-related issues that come before judges.

Why Is This Related To Primary Prevention?

The argument of North Carolina was, in part, that restricting sex offenders from social media sites was a virtual extension of banning them from schools, parks, daycares, and other places children gather. They claimed that banning sex offenders from such places, and from certain internet sites, was in the interest of protecting the community.

Logically, their argument falls short, because sexual offenders do not pose the most significant risk to children: Those new to the criminal justice system who are trusted in the community are. The SCOTUS did not buy the legal argument of North Carolina because, in part,

"By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current 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."

Social Media Helps Reintegration

Another essential part of why they ruled against North Carolina, that was quoted in many articles on the subject, was,

"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."

This issue is closely related to primary prevention, because it allows sex offenders the right to use social media and have a bigger voice in politics, as well as use the internet to reform themselves (which, by the way, includes yours truly).

Concerns About Restrictions On Those Having Served Their Sentence

One concern outlined in the court's decision, and was also shared in one of the news articles discussing the decision, was that the law is imposing restrictions on convicts and ex-convicts after the completion of their sentence. This concern was briefly mentioned in the court's decision:

"Of importance, 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 is also not an issue before the Court."

This suggests that the court may take up the issue again in the future, and a growing number of civil rights advocates are have been concerned about similar issues. I posit that scaling back these restrictions may well reduce recidivism, and can have collateral consequences well beyond what their intent was.

One Item Of Concern...

I do have one item of concern regarding the court's decision: Their claim that sex offenders pose a serious risk for recidivism, and that the internet can all too easily be used by a sex offender to commit a new sexual crime against a child. The court cites a wide range of examples in airing this concern that, frankly, would give many would-be offenders ideas on how to commit such a crime and get away with it.

I am concerned by this, because not only does the concern of sex offenders committing new sex crimes have no basis in research, the ruling is such that their statement that runs contrary to said research may be cited in future decisions regarding the issue. I worry about broadly announcing the fact that social media can be used to stalk, sexually exploit, and sexually abuse children in specific ways, and this ruling appears to do just that. We need to avoid giving people ideas.

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