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The ruling that changed everything (and nothing at all)

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.

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John P.

John is a father, son, brother and husband from southern California who is currently living in Burlington, Vermont with his wife and two young boys while serving out 3 remaining years of federal probation and 12 years on the sex offender registry. John is a former Wall Street executive who spent 20 years navigating the small world of commercial real estate finance before he pled guilty to possessing child pornography in 2016. He has an undergraduate degree from the University of California and an MBA from NYU Stern school with double majors in management and finance.

This topic contains 7 replies, has 2 voices, and was last updated by  Chuck 1 month ago.

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  • #48035 Reply
    John P.
    John P.

    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
    [See the full post at: The ruling that changed everything (and nothing at all)]

  • #48044 Reply

    Tim

    John,
    The electronic lists have always had an intrinsic purpose other than public safety. The imposition of affirmative restraint. That particular aspect was ignored blatantly by Congress and later the court in favor of electronic convenience of database use. The people failed to convey acutely the relationship between machine and man inherent in the regime. Can humanity survive decisions that promote the idea of making man subservient to machine – even in any small way like SOR?. A man is paid to operate machines in free society.

    • #48397 Reply
      John P.
      John P.

      “This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”

      Justice Kennedy, Majority Ruling Opinion, Packingham v. North Carolina, page 6

      “Of importane, 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)”

      Justice Kennedy, Majority Ruling Opinion, Packingham v. North Carolina, page 8

      Great comments. Packingham is new ground and yet merely applies ancient principles of fairness to SO law. That and a subway token will get you a ride. Chuck is absolutely right there are no lawyers willing to fight to apply Packingham so to WC’s question, the state and her agents can do whatever the heck they want to do because there is no one on the other side to push back. Public opinion is, as always, against us and no judge wants to be the one who outlaws the registry or major aspects of it and/or probation. Yet, SCOTUS has spoken and if you were to win the lottery you would likely win significant freedoms if you sued. That being said, are we even allowed to play the lottery? Probably not…

  • #48061 Reply

    WC_TN

    The state of TN is contending that the dicta of Packingham leaves the prohibition in place for those like myself who are still under active state supervision. Is that so or did Packingham foreclose barring sex offenders from accessing social media across the board?

    Isn’t Packingham law of the land now that SCOTUS has ruled it violates fundamental free speech? The First Amendment not only protects free expression, but also the right to receive information. Barring offenders from social media forecloses a huge forum for the exchanging of ideas and information.

    Is Packingham v. North Carolina applicable to registered citizens subject to on-going state community supervision?

  • #48121 Reply

    Chuck

    Like so many other incremental changes in the right direction, I regather my hope. And the call is always to advocate and fight. Yet, to date, even in the light of such positive change, no attorney seems to be willing to take on these causes, and like most S.O.’s I am underemployed and financially desperate all the time. So how might we fight when we are locked out of the system that is obviously driven by cash motives? The state will fight long, hard, and even dirty, and attorney’s charge and charge in response.
    I have a great ex post facto claim on Colorado, according to one of your recent podcast guests, and this ruling seems to reinforce that I should be relieved of the added (lifetime) registration that was once only 10 years. But no one will take it on without a sufficient war chest to fund the fight. What can we do in reality that would help at all? Other than continue to cry out to a public that doesn’t want to hear it?
    I have always tried to view my consequences as a social obligation, like paying taxes, but no other social obligation that I am aware of changes continuously and only in a negative direction, until there comes a time when any partially fair minded person has to admit that things are out of proportion. But there is scarcely and public outcry that is not one of the lepers or their family. So…what can/must we do? If not for NARSOL, no one would really know what we go through.

  • #48287 Reply

    Ed from Mars

    While social is now legally open, Facebook can and will boot sex offenders off its program.
    Also, as in my case, my counselor forbids access to Facebook and its affiliated apps.
    This isn’t just when one us on supervision, but as long you’re required counseling. If you’re caught accessing it, you can, and likely, will released from her care and will need to get a new counselor.

    • #48450 Reply

      Dustin

      @ Ed from Mars:

      My counselor wanted me to sign a pledge not to use the internet at all last year; I refused. I told her depending on the extreme you want to take it, I could be in violation just for watching TV, using a cell phone, or my ATM card, all of which use the internet. She replied to just sign it and she wouldn’t make issue of things like that.

      Again I refused. On top of the above, I also use the internet for news, fantasy football, and legal research regarding SO issues and probation terms, all of which is perfectly legal and proper. Also pointed out that the PO can search through my devices whenever they want. Again, she said just sign and we’ll deal with it case-by-case (side note: “Just sign and deal with it later” was beaten out of me by my idiot public defender). Again, no. Either spell out specifically what is allowed or what is not. I won’t leave room to misinterpret. Haven’t heard anything about it since.

      Yes Facebook has a no-SO policy, but enforcing that is their problem, not the government’s. They’re not going to scrub 2 billion profiles every day/month/year to try to find those who may (or may not) be registrants. Some states have laws requiring registrants not on paper to register “identifiers” for that very reason. But I’ll bet those laws can be stricken easily enough, being another constraint or unreasonable search on registrants no longer under supervision.

      • #48628 Reply

        Chuck

        Hi Dustin, In my very much “voluntary job because no one will hire me position” I use my professional training to coach porn addicts who wish to stop being under the control of a process addiction. This is the answer I would give your counselor, because it is reasonable and measured: “I would be happy to choose an accountability partner, whom you can meet, who can help me place filtering software on my devices to limit my access to those sites and apps that I need, but not those that would violate my terms of counseling or probation/parole. There are plenty of safeguards available that will help assure you, my accountability partner, the public, and myself that I am not misusing this vital tool to employment, information, and public connectivity.” If she cannot accept that, you have an ignorant and underskilled counslor, which, I am sad to say is about 85% or more of them. I can say that because it is my field and I am a doctoral level counselor-educator (out of work because of an RSO complaint by a vigilante).

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