By John P . . . On June 19th, 2017, the Supreme Court of the United States issued a ruling that was read and noticed by a relatively small segment of the population. Packingham v. North Carolina overturned an oppressive state law that had made it a felony for anyone registered as a sexual offender to access social media sites such as Facebook and Twitter. While the immediate impact from the ruling opened up social media sites for sex offenders – did you not get the memo? no? me neither – it did something much more significant and impactful as well: It reinstated the “McCullen” legal standard that has been in effect for every other prosecutable crime and applied it to [SHOCK!] sex crimes. In short, the Supreme Court said what all of us on the registry have felt forever – that post-incarcerative rights restrictions are subject to the same high standard for sex crimes as they are for every other crime.
The McCullen standard refers to the ruling in McCullen v. Coakley that places a burden of proof on the government whenever it restricts a person’s constitutional rights:
“In order to survive intermediate scrutiny, a law must be ‘narrowly tailored’ to serve a significant governmental interest” (McCullen v. Coakley, p. 6).
In the suit filed by Lester Packingham, the Supreme Court applied this standard by interpreting North Carolina’s law as an “overly broad” (i.e. not narrow) restriction on Mr. Packingham’s right to free speech and that the government did not meet its burden to show that this sweeping law was necessary to serve its stated purpose of keeping convicted sex offenders away from vulnerable victims. The Packingham ruling was about free speech and overturned an obnoxious state law, but the Court’s language is clear, unambiguous, and widely applicable: In order to restrict a sex offender’s constitutional rights, that restriction must be narrow and serve a significant government interest. That last qualifier – “significant” – is also important and game changing because it upends the government’s longstanding precedent assumption that the government need only justify a “valid” governmental interest, which is a standard so low as to include just about anything the government does or could do.
Prior to Packingham, the government operated under a false assumption that so long as they could show that the state had a “valid governmental interest,” then it could infringe on the rights of sex offenders with impunity. The Supreme Court was no longer having any of that. From Justice Kennedy’s majority opinion:
“But the assertion of a valid governmental interest ‘cannot, in every context, be insulated from all constitutional protections’ (Stanley v. Georgia)” (Packingham v. North Carolina, p. 7).
In addition to bringing sex crime law back from the prosecutorial world of “anything goes to save our children” and into the same constitutional fold as all other laws, Packingham also raised the bar that the government must meet in order to take away registered sex offenders’ rights. From “valid” to “significant”; this is a paradigm shift of massive proportions that will – eventually – invalidate so many rights restrictions that we, as registered sex offenders, have become accustomed to. Practically, it is likely to limit the government into imposing rights restrictions that specifically relate only to activities that could result in a re-offense of a convict’s actual crime without regard to slippery slope risks.
As an example of how Packingham could change things, while ‘possession only’ sex offenders could reasonably be restricted from accessing the internet without monitoring, they would not reasonably be prevented from visiting a school or playground because the public would not have a significant interest in preventing a felon from committing a crime he/she has never been convicted of. Yet because the wheels of justice turn slowly (and grudgingly) the actual impacts from such an important and broad ruling as Packingham will only accrue to those who are willing to fight for them.
Most rulings by the Supreme Court, even important ones, don’t get much media attention, and therefore their impact is only felt over a period of years and decades. It takes lawsuits and complaints by hundreds and even thousands of aggrieved citizens to effect the broad change that the Supreme Court advocates for in its rulings. That is a sad truth and, if you’ve ever wondered why, it is due to the original structural weakness in how the judiciary was formed. Where Congress can write laws and presidents can issue executive orders whenever they choose, the Court may only react and therefore must be moved into action by citizen complaint. Even then Congress and a pliant judiciary have created a bulwark of byzantine rules that invalidate most complaints over administrative detail irrespective of the import or substance of the complaint therein. The effect of all of this, however, is that our courts are feckless by comparison to the legislative whims of Congress who can re-write an unconstitutional law within weeks of a court challenge (e.g. abortion, immigration, etc.) or the President who can issue an executive order in a day that can be applied by his departments within hours. Such laws and executive orders impact us all in an instant and may take years or more to be unwound by the courts, no matter how unconstitutional or fundamentally un-American they may be.
The good news for registered citizens is that Packingham is the law of the land, and all federal and state judges and officials need to adhere to it. The other good news is that Packingham was unanimous (Justice Gorsuch was not yet installed), even if two of the Court’s justices advocated for a lower than “significant” standard, and the critically important application of McCullen to sex law was uncontested. The bad news is that nobody is going to give an RSO any rights that they don’t have to, and the government will fight every challenge tooth and claw. For those like me who are currently living under terms of probation or registration that are neither narrowly tailored nor serving a public interest at all, let alone a significant one, it is up to us to decide whether we want to fight for our rights and risk re-publicizing our crime or persevere with the unconstitutional rights restrictions we currently endure.