Listen to Guy Hamilton Smith, Legal Fellow at the Mitchell Hamline School of Law Sex Offense Litigation and Policy Resource Center, discuss his article “The Digital Wilderness: A Decade of Exile & the False Hopes of Lester Packingham.”
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Packingham was a hollow victory. We won the civil right to access Facebook, but as a private entity Facebook can discriminate with impunity, without fear of consequences.
It was anything but a hollow victory. It was a landmark victory!
Prior to Packingham, state law made it a felony for a registrant to access any site that could potentially be used to communicate privately or publicly with a minor. Including news sites where people could respond to one another’s comments. It might have been a felony to access that site for news, if it contained that feature.
I don’t agree with selected sites’ (mainly Facebook’s) private policies about who has access, but compared to pre-Packingham, much better off.
So it was a win for North Carolina, but they, and the other 49 states, still can’t access Facebook.
Better off, sure, but I think one of the questions that remains to be answered is by how much exactly? While states can’t directly ban access to social media, they seem to continue to be free to do indirectly what is not longer constitutionally permissible to do directly.
Louisiana, for example, has a law that requires people on the reg to include — in their social media profile — that they are a sex offender, what their crime was, and their home address. My opinion is that such a law operates as a ban as a matter of fact, if not law.
This is, of course, to say nothing of the fact that private firms like FB are free to enact their own bans.
Packingham, as good and important as it is, is not the end of the story. It’s just the start.
And the statute challenged in Packingham did not just cover Facebook, as the podcast I think makes clear. It covered all manner of online forums plus almost any site that happened to contain some sort of forum feature within it.
Had not Packingham challenged that statute, then many other state legislatures, including Florida’s, might have been tempted to suppress registants’ online access in a way that goes well beyond Facebook’s terms of use.