Can a Social Media Account Get You Arrested?

UPDATE: Supreme Court has unanimously struck down the North Carolina law banning sex offenders from social media, finding that its wide breath violates the First Amendment. In today’s day and age of the average American having over twenty active user accounts, it is hard to imagine that the mere registration of a social media account could qualify as a felony in some states. This, however, is just the case if you happen to live in North Carolina and are a registered sex offender.

Now clearly, on its face, limiting a sex offender’s access to social media websites may seem reasonable and necessary. And thus, many states have passed laws restricting such use successfully and without controversy.

The Supreme Court is hearing arguments this week about a North Carolina law restricting such use. For many criminal law scholars, Lester Packingham’s case reads as an all-too-familiar cautionary tale of the woes of statutory rape statutes and their strict liability requirements. In 2010, at the age of twenty-one, Packingham was convicted of statutory rape after having consensual sex with an underage girl he was dating. Although he received a suspended sentence, North Carolina law still required Packingham to register as a sex offender, a registration that lasts for 30 years in North Carolina.

Seven years after his conviction, without another blemish on his record, Packingham was found guilty of the felony of accessing social media websites that are banned for registered sex offenders in North Carolina when he registered for a Facebook account. While Packingham’s Facebook page itself did not have any improper sexual content or evidence of further sex crimes, its mere registration qualified as a felony in North Carolina and was enough to have Packingham placed on probation.

While on its face, it may seem like an unsavory task, many Internet scholars have authored briefs in support of Packingham and others in similar situations. These friends of the court argue that such wholesale bans are too onerous of a limit on a citizen’s liberties, especially a citizen who is no longer in prison and not subject to active monitored release. In support of this argument, they note that other states have successfully passed laws prohibiting access to popular social networking websites such as Instagram, Facebook, and Snapchat, without the infringement of key civil liberties. The difference is that, in the drafting of these laws, other states limited the restriction of access to offenders that were likely to commit sexual crimes using such tools, or similarly, had committed crimes that would make access to such sites too much of a threat to the general public.

By contrast, North Carolina, is the only state that has passed and upheld a carte blanche restriction on all sex offenders, regardless of the offense. And while two other states, Indiana and Nebraska, have already had similar laws struck down by federal courts, North Carolina’s highest court upheld the controversial law.

For more information on this topic, please visit our Social Media Law service page, which is part of our Internet & eCommerce Practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the Internet & eCommerce law firm and its Internet & eCommerce attorneys may be found at www.klemchuk.com.

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