VIRTUAL BANISHMENT: The Effort to Ban Registered Citizens from the Internet / Social Media
Derek W. Logue of
Created: 5 Feb 2021, Updated: 23 Mar 2021


Over the years, a series of laws have passed in an attempt to regulate Internet activity of all Americans. As with every law
designed to chip away at the US Constitution, laws designed to limit the online activity of registrants are merely a part of
broader Internet censorship efforts. The US Supreme Court is set to decide the rights of registered citizens to use social media
websites in Packingham v NC. This article covers the brief history of these efforts and the legal challenges facing them, as
well as analyzing the primary arguments against the social network bans.


(*Note: For purposes of this article, this discussion focuses only on laws that affect censorship of “sexual” materials. Other
laws like the DMCA, SOPA, and PIPA are not discussed here.)

The Internet is merely another form of communication, and over the years has become the primary form of information
gathering, surpassing older forms of communication such as print media, radio, and even television. It is not surprising that
the government would take steps to regulate this new form of media. As with previous laws governing media materials
deemed pornographic, [1]  laws that targeted child pornography and the more broadly defined obscenity are intertwined, and
often the protection of children from child porn or even sex trafficking has been used to justify sweeping laws that limit
material that may not be connected in any way to the crimes the laws purport to deter.

The first attempt to regulate Internet activity was the Communications Decency Act of 1995, [2]  sponsored by Sen. Exon, J.
James [D-NE] and co-sponsored by Sen. Gorton, Slade [R-WA]. The bill was incorporated into the Telecommunication Act
of 1996 under Title V. This law was derisively called “Great Internet Sex Panic Act of 1995” with good reason; the CDA
“sought to regulate ‘indecent’ or pornographic material by criminalizing its use by anyone under the age of 18 and by limiting
speech that was deemed to be “obscene” or “indecent” to individuals under the age of 18…Free speech advocates worried
that many things, including reading or writing about already in-print novels, saying words deemed to be “dirty,” or even
accessing or providing medical information could potentially qualify as criminal action.” [3]  The censorship provisions of the
CDA were overturned in Reno v. American Civil Liberties Union; [4]  Justice Stevens, writing for the majority of the Court,
[5]  stated:

“We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of
speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of
speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is
unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute
was enacted to serve… It is true that we have repeatedly recognized the governmental interest in protecting children from
harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we
have explained, the Government may not ‘reduc[e] the adult population…to…only what is fit for children.’”

In response to Reno v ACLU, Congress passed the ‘Child Online Protection Act.” [6] COPA criminalized online material that
“‘taken as a whole,’ appeals to ‘the prurient interest,’ that depicts sexual contact, and that ‘lacks serious literary, artistic,
political, or scientific value for minors’ (i.e., anyone age 16 and younger). The law applies to those content providers that
spend some time or attention trying to earn a profit and that cause the harmful material to be posted online. Id. at § 231 (e)(2)
(B). COPA provides websites with an affirmative defense if they restrict access by minors by requiring the use of a credit
card or other means.” [7] The story of COPA is more complicated but was ultimately struck a fatal blow in ACLU v.
Mukasey. [8]  After SCOTUS had ruled on previous decisions on COPA, remanding the case back to the 3rd Circuit after
deciding “community standards” alone wasn’t enough to declare COPA unconstitutional, [9] the 3rd Circuit ultimately ruled
COPA would not meet “strict scrutiny” since COPA was not narrowly tailored and did not use the least restrictive method of
protecting children.

In 1996, Congress passed the Child Pornography Prevention Act (CPPA) of 1996.[10]  CPPA prohibited “any visual
depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture” that “is, or
appears to be, of a minor engaging in sexually explicit conduct,” as well as “any sexually explicit image that was advertised,
promoted, presented, described, or distributed in such a manner that conveys the impression it depicts a minor engaging in
sexually explicit conduct.” The CPPA was struck down in Ashcroft v. Free Speech Coalition [11]  as overbroad, as CPPA
abridged “the freedom to engage in a substantial amount of lawful speech.”

The Children’s Online Privacy Protection Act of 1998 (COPPA) details what a website operator must include in a privacy
policy, when and how to seek verifiable consent from a parent or guardian, and what responsibilities an operator has to
protect children’s privacy and safety online including restrictions on the marketing to those under 13. Due to this law, many
websites prevent children under 13 from creating online accounts. [12]  Despite this, it was reported around 7.5 million
children under age 13 had active Facebook accounts in 2011.[13]

The Children’s Internet Protection Act (CIPA), passed in 2000, requires that K-12 schools and libraries in the United States
use Internet filters and implement other measures to protect children from harmful online content as a condition for federal
funding. This law included provisions to require filtering software to filter out, among other things, obscenity, child porn, and
other material deemed “harmful to minors.” [14]  This Act was upheld in 2003’s SCOTUS ruling in United States v. American
Library Association. [15]

The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003, [16]  
introduced by Sen. Orrin Hatch (R-UT), added a number of definitions to the CP statutes in addition to other provisions
advertised to protect children, including AMBER alerts, mandatory minimums, and eliminating pre-trial release and statutes of
limitations for certain sex crimes. The PROTECT Act was a reaction to the SCOTUS ruling against the COPA. The
PROTECT Act also established “Operation Predator,” a joint initiative between the United States Immigration and Customs
Enforcement and the Department of Homeland Security to work on child porn and sex trafficking cases. Through this
program, ICE has boasted of 8000 arrests between 2003 and 2012. [17]

Congress introduced, but failed to pass, the Deleting Online Predators Act of 2006. [18]  If DOPA became law, minors would
have been restricted from accessing chatrooms or social networks using school or library computers without parental
guidance. Congressman Ted Poe (R-TX) testified that “Social networking sites such as MySpace and chat rooms have
allowed sexual predators to sneak into homes and solicit kids, and this bill requires schools and libraries to establish those
protections to prevent children from accessing MySpace and chat rooms while in school and libraries unless parents are there
or unless there is supervision.” Opponents testified the law was redundant, overbroad, and rushed through legislation. [19]

Up to this point, legislation did not attempt to ban registered citizens from using social media or the Internet altogether. The
typical steps taken by these laws were to restrict the dissemination of materials deemed pornographic and to restrict children’s
access to harmful materials or sites that they believed may put them at risk for sexual exploitation. The Keeping the Internet
Devoid of Sexual Predators (KIDS) Act of 2008 [20] doesn’t actually restrict registered citizens from using the Internet,
despite the clever acronym. Instead, the KIDS Act merely requires registrants to register “all Internet identifiers (i.e., email
addresses and other designations used for self-identification or routing in Internet communication or posting),” and this
information is not listed publicly.

While the KIDS Act is not a ban on social networking, requiring registered citizens to register online identifiers is still a form
of censorship for registered citizens. Facebook officially banned registered citizens from using their website in May 2008.
[21] In this instance, the government is turning to businesses to perform functions the government is not legally allowed to
do. Art Bowker of elaborates on why Facebook would carry out a banishment clause:

“Why would Facebook have such a policy? They are a private concern and have a right to set their policy as long as it doesn’t
discriminate. Sex offenders, last time I checked are not a protected class. So they can set their policy to not exclude them.
Some users may actually join Facebook or at least feel some comfort in joining because of this policy. They join with the
belief that sex offenders aren’t allowed on the website, a belief that is enforced by Facebook’s policy on reporting sex
offenders for action. That is what is called “freedom of association,” another one of those constitutional rights we have. So a
private company sets up a rule excluding a non-protected group from joining, a group that represents a risk to minors. I am
sure the courts will decide whose rights are more compelling, the sex offender’s first amendment right or the general public’s
to associate with whom they chose.” [22] The case Bowker mentions is Packingham v. NC., the case up for SCOTUS review.


The justification for laws regulating registrant activity online is the same assumption that inspires physical presence
restrictions, namely the erroneous perception that a registrant’s only purpose online is to lure children. Adding to the virtual
panic is the belief that the Internet is rife with online predators. The “50,000 Internet predators are currently” myth is
attributed to controversial TV personality Chris Hansen and his “To Catch a Predator” series; Hansen admits he conjured the
number out of thin air. [23] Clint Van Zandt, MSNBC analyst & former FBI profiler, proclaimed in 2006, ““Federal authorities
believe that at least 500,000 to 750,000 predators are ‘on-line’ on a daily basis, constantly combing through these blog
sites, crawling around in Internet chat rooms and on-line dating services, pretending to be someone and something they’re
not.” [24] In reality, the number of actual online child exploitation arrests in 2006 was only 635 for “online predation” and
3100 for online solicitation of officers posing as minors. [25]

Why do the Media prefer large and nicely rounded numbers? Famed FBI profiler Ken Lanning refers to the 50,000 stat as a
“Goldilocks number,” meaning the number is a number that doesn’t sound like too many or not enough. The number 50,000
has been applied for many unknown numbers –Korean War casualties, deaths and annual deaths from second hand smoke,
number of children allegedly sacrificed to Satan during the satanic cult scares of the 1980s. [26]

In 2009, MySpace deleted 90,000 accounts tied to registered citizens; Connecticut Attorney General Richard Blumenthal
sounded the fear by stating, “Almost 100,000 convicted sex offenders mixing with children on MySpace — shown by our
subpoena — is absolutely appalling and totally unacceptable. For every one of them, there may be hundreds of others using
false names and ages,” Ernie Allen of the NCMEC could not give an accurate assessment of the danger, stating, “We don’t
know if that’s 80 percent of the population targeting kids on the Internet or 1 percent.” [27] Blumenthal was in the minority
among a task force of 39 State Attorney Generals, which has released a report just weeks earlier that concluded the problem
of bullying among children, both online and offline, poses a far more serious challenge than the sexual solicitation of minors
by adults. Blumenthal and Roy Cooper of NC publicly accused the social networks of facilitating the activities of pedophiles
and pressured them to remove registered citizens from their services. [28]

It is extremely likely that Blumenthal was at least partially influenced by the controversial TV show “Dateline NBC: To Catch a
Predator” (TCAP). While the show was ratings gold for the struggling NBC network, ethical questions plagued the show.
NBC hired Perverted Justice, an online vigilante group who rose to fame trolling “would-be pedophiles” and headed by a man
who called the civilian victims of al-Qaeda “shameless and pathetic” on his blog, and once pretended to be a woman to seduce
an online enemy in an attempt to ruin him. Phillip von Eide (alias Xavier von Erck) set up a non-profit for his organization and
used the funds from the non-profit to pay a six-figure salary to his closest allies and Erck himself. [29] A number of
controversies led to the demise of the show, including poor criminal investigation techniques led to acquittals in a number of
the show’s cases, [30] the $100,000 per episode payout to Perverted-Justice led to accusations of conflicts of interest, [31]
and a lawsuit against NBC by the family of one accused solicitor who committed suicide while camera were rolling. [32] A
decade after the show’s heyday, TCAP remains popular and influential; TCAP’s former host Chris Hanson raised nearly
$90,000 in 2015 to revive the concept though a Kickstarter campaign. [33]

Despite what people influenced by TV shows like TCAP or politicians like Blumenthal think, much of what we believe about
so-called “online predators” is patently untrue.

The Crimes Against Children Research Center has conducted a series of “Youth Internet Safety Surveys” in 2000, 2005, and
2010, respectively. Each YISS study asked questions to 1500 juveniles between ages 10 and 17. Below is the description of
the sexual solicitation questions from the YISS:

“The incidence rates for sexual solicitation, unwanted exposure to sexual material, and harassment were estimated based on
questions about unwanted experiences while using the Internet in the past year (“past year” refers to the year before the
interview). The questions used in the current article were identical across all YISS studies. Unwanted sexual solicitations were
defined as requests to engage in sexual activities or sexual talk or to give personal sexual information that was unwanted or
made by an individual >5 years, whether wanted or not. The incidence rate for sexual solicitation was estimated based on
endorsement of at least one of the following three screener questions:”

  • “In the past year, did anyone on the Internet ever try to get you to talk online about sex when you did not want to?”
  • “In the past year, did anyone on the Internet ask you for sexual information about yourself when you did not want to
    answer such questions? I mean very personal questions, like what your body looks like or sexual things you have
  • “In the past year, did anyone on the Internet ever ask you to do something sexual that you did not want to do?”

“Additionally, youth who said they had an online sexual relationship with an adult were included to capture possible statutory
sex crimes (n =0 from YISS-1; n=8 from YISS-2; n=1 from YISS-3). We also defined a subgroup of aggressive sexual
solicitations, in which solicitors attempted or made offline contact with youth through regular mail, by telephone, or in
person.” [34]

The results of the three YISS surveys found the prevalence of risky online sexual behavior has lowered somewhat over the
past 10 years:  “Unwanted sexual solicitations declined from 19% in 2000 to 13% in 2005, and finally to 9% in 2010; thus,
there was a total 50% decline in reports of this problem between 2000 and 2010. However, aggressive solicitations (in which
offline contact was attempted or made) did not change significantly across the three surveys (3%, 4%, and 3% in 2000, 2005,
and 2010, respectively)… there was a decline in youth reports of unwanted exposure to pornography between the 2005 and
2010 YISS surveys, from 34% to 23%. This decline followed an increase between 2000 and 2005 (from 25% to 34%).” [35]

The researchers believe a number of factors have influenced the declining sexual risk numbers, including the migration from
chatrooms to social network sites, education on the dangers of talking to strangers online, and even increased prosecution of
online solicitation cases. The researchers point out that most solicitations are made by someone close in age to the juvenile,
not by adults; most solicitations are rejected; and successful offline activity was considered flattering and desired by
participants. Ultimately, it cannot be assumed that one in 10 juveniles was solicited online by adults. Also, the decline in
exposure to unwanted sexual materials like pornography could be attributed to a combination of better education programs and
filtering software. [36]

Oftentimes, victim advocates quote (and misuse) the YISS-1, which found that 19% of those surveyed had “experienced an
unwanted sexual solicitation” in the past year. (For example, Safety Zone Advocacy, a website run by online vigilante Judy
Cornett, claims “1 of 5 children who use a computer chat room has been approached by a pedophile.”) [37] In reality, the
term “sexual solicitation” has been interpreted includes anything from sexual spam to someone asking if a person “got lucky”
on a date. Only one in 33 experienced an “aggressive sexual solicitation,” or a request to contact offline. Of those who made a
“sexual solicitation online,” 24% came from adults, 48% came from other juveniles, and 24% from unknown people; only 4%
of the solicitations came from someone over age 25. About a fourth of these solicitations were considered “distressing.”
Interestingly, 13% of online solicitations were made by females. Most “aggressive solicitations” were rejected by the one
solicited. None of the solicitations led to any offline sexual contact between adults and juveniles. [38] The victim industry’s
claims the solicitations are from “pedophiles” is erroneous.

The characteristics of both online solicitors and those who agree to meet in person have also been misrepresented by the
victim industry. Finkelhor, et al., found that very few instances of online solicitation involved any trickery or violence. Only
5% of those who were arrested for online solicitation of minors lied about their ages. Older teens are more likely to meet a
solicitor offline as they are more independent. Those who agreed to offline contact engaged in riskier online behavior such as
talking about sex online, posting or searching for provocative photos, or even bullying behavior. The researchers warn us that
we should “(a)void descriptions of the problem that characterize victims as young children or emphasize violence and
deception.” [39]

A survey from Cox Communications and the NCMEC found 14% of teens met in person with someone they had previously
only met online, but never asked what the nature of the meeting entails. (The survey does not mention sexual behavior online.)
Most of those who met offline, however, were 16 and 17-year-olds. [40] Both the YISS and the Cox/NCMEC studies agree,
however, that educating youth on proper Internet use and the potential dangers of sharing improper information online reduces
the likelihood of victimization.

The bottom line is the perception of so-called “online predators” in American society is inaccurate. Finkelhor succinctly
describes the common type of online solicitation below:

“[T]hese are not mostly violence sex crimes, but they are criminal seductions that take advantage of common teenage
vulnerabilities. The offenders lure teens after weeks of conversations with them, they play on teens’ desires for romance,
adventure, sexual information, understanding, and they lure them to encounters that the teens know are sexual in nature with
people who are considerably older than themselves […] What puts kids in danger is being willing to talk about sex online with
strangers or having a pattern of multiple risky activities on the web like going to sex sites and chat rooms, meeting lots of
people there, kind of behaving like an Internet daredevil.” [41]


Thankfully, few states have passed laws restricting registered citizens not currently on probation or parole from unrestricted
use of the internet. Below are the laws on the books as of January 2017:

  • Guam [9 GCA 89.03(i)]: Prohibits registrants from accessing, creating, or maintaining a personal web page, profile,
    account, password, or user name for a social networking website, instant message or chatroom program that allows
    individuals under 18 to also create accounts, unless the website limits the ability of adults to add those under 18 as
    “friends, buddies or associates.” All computers or internet-capable devices belonging accessible to the registrant are
    subject to unannounced searches by law enforcement personnel performing a “lawful investigation.”   
  • Kentucky [KRS 17.546]: Registrants who use social networks that allow access/ use the website to anyone under 18 is
    guilty of a Class A misdemeanor.
  • Louisiana (RS 14:91.5): Registrants convicted of crimes involving minors are prohibited from “intentional use” of social
    networking sites. Violations are punishable by up to 10 years in prison and up to a $10,000 fine for the first offense.
    Those registrants not governed by RS 14:91.5 may use social media but must post a notice on their social media
    account they are registered citizens [RS 15:542.1(D)].
  • North Carolina (NCCS 14-202.5): It is a Class I Felony for a registered citizen to access any “commercial social
    networking web site” where the registrant knows the site allows minors to become members or maintain personal web
    pages. A commercial social networking Web site does not include an Internet Web site that either: (1) Provides only
    one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message
    board platform; or (2) Has as its primary purpose the facilitation of commercial transactions involving goods or
    services between its members or visitors.
  • Some states restrict Internet usage for those on probation or parole. [42]


Technology has become prevalent in our society, yet those who are forced to abide by the laws (and even those tasked with
enforcing these laws) find it difficult to understand the confusing laws. (With little wonder, as John McCain, who has pushed
a number of Internet laws over the years, is admittedly computer illiterate.) [43] One registered citizen, “Trevor,” reported he
was confused as to whether a Furby toy would place him in violation of the Internet ban, and had only became aware of his
Internet restrictions after he found his parole conditions online. “This is the state of technology and the law when it comes to
registered sex offenders – ignorance, confusion, misinformation and conflicting court decisions. Every state has its own set of
laws about which offenders need to be monitored or banned from using the internet and to what extent… Parole and
probation officers inconsistently hand out and enforce such restrictions, and the laws differ for those on parole, probation,
community supervision and the registries.” [44]

Privacy is another primary legal concern, especially for those on supervision. “With these monitoring practices, all privacy is
eliminated; even mundane and legal computer activity becomes open to law enforcement scrutiny. Fear of violating parole or
probation could prevent people from seeking help or advice related to their offense, undercutting public safety. Pushing and
intimidating offenders off the internet makes it harder for them to find jobs, obtain social support, read the news and function
in contemporary society.” [45]

As of January 2017, the right of states to restrict Internet activity is pending SCOTUS review in Packingham v NC, Docket #
15-1194, with oral arguments due to be heard on Feb. 27, 2017. Before discussing the arguments presented by the parties in
the case, it is important to review the lawsuits against various internet restrictions throughout the years.

Utah: In Doe v. Shurtleff, [46] the 10th Circuit upheld a Utah law requiring registered citizens to register their internet
identifiers in order to “assist in investigating kidnapping and sex-related crimes, and in apprehending offenders.” Doe had
argued against UCA 77-27-21.5 as violations of his 1st Amendment right to anonymous speech, the 4th Amendment right to
privacy and freedom from unreasonable searches and seizures, and the ex post fact clause. The Court held the law was a
“content-neutral regulation” (it does not prohibit speech or is aimed at expressing unpopular views). Under an intermediate
scrutiny standard, a law is upheld if the act: (1) serves a “substantial” government interest and (2) is “narrowly drawn” to
serve that interest without unnecessarily interfering with First Amendment freedoms.” Using this lower standard, the Court
ruled the law did not have a chilling effect on free speech. The Court ruled Doe did not have a reasonable expectation of
privacy in “information that he voluntarily transmitted to the third party internet providers,” including his internet identifiers. It
also ruled ex post facto does not apply because the law is a civil statute.

Nebraska: In Doe v. State of Nebraska, [47] a US District Judge struck down parts of Nebraska’s Internet blanket ban on
many grounds, including the 1st Amendment, the Due Process Clause, Ex Post Facto, and the 4th Amendment for those
convicted or removed from state supervision before Jan. 1, 2010. It is noted the law was deemed punitive in nature, as those
who sponsored the law admitted the intent was punitive.

“Plaintiffs challenge the constitutionality—both facially and as applied—of parts of three statutes: Neb. Rev. Stat. §§ 29-4006
(1)(k) and (s) , 29-4006(2), and 28- 322.05 (West, Operative Jan. 1, 2010). Generally, sections 29-4006(1)(k) and (s) require
disclosure by persons required to register under the Nebraska Sex Offender Registration Act of remote communication device
identifiers, addresses, domain names, and Internet and blog sites used; section 29-4006(2) requires registrants to consent to
the search and installation of monitoring hardware and software; and section 28-322.05 criminalizes some registrants’ use of
social networking web sites, instant messaging, and chat room services accessible by minors.”

The judge noted that the Nebraska legislature has “violently swayed from” the constitutional path and even the constitutional
parts were “wrongheaded and counterproductive” (p.2). I the paragraph below, the judge deemed this law is punishment:

“Fourth, and finally, these statutes are rife with other constitutional infirmities, and the blatant willingness of the Nebraska
Legislature to violate the Constitution is strong evidence of animus. These laws gut the 1st and 4th Amendment and the Due
Process Clause. These statutes retroactively render sex offenders, who were sentenced prior to the effective date of these
statutes, second-class citizens. They are silenced. They are rendered insecure in their homes. They are denied the rudiments
of fair notice. In Nebraska’s ‘rage’ and ‘revulsion,’ they are stripped of fundamental constitutional rights. In short, sex
offenders who were sentenced prior to the enactment of these laws are punished.”

Indiana: In Doe v. Prosecutor, Marion County, Indiana, [48] the 7th Circuit held “Though content neutral, we conclude that
the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather
than specifically targeting the evil of improper communications to minors.” It overturned the lower court ruling that “found
the law implicates Doe’s First Amendment rights but held the regulation is narrowly tailored to serve a significant state interest
and leaves open ample alternative channels of communication.” In response, the 7th Circuit stated, “Because we conclude the
law is not narrowly tailored, we need not reach the alternative channel inquiry.”

Louisiana: In February 2012, the US District court ruled in Doe v. Jindal [49] the Louisiana Internet statute, known as the
Unlawful Use or Access of Social Media Law (LSA-R.S.14:91.5), which prohibited persons convicted of indecent behavior or
pornography involving juveniles, computer-aided solicitation of a minor, video voyeurism or any sex offense involving a minor
from using social networking websites, chat rooms or peer-to-peer networks, was unconstitutional. The district court noted
that the definition of “social networking website,” “peer-to-peer network” and “chat room” were so broad as to ban sex
offenders from virtually every online site, including news websites and job search sites, and even the website for the federal
courts. The Court ruled the law was not narrowly tailored as well as unconstitutionally vague, adding, “Although the Act is
intended to promote the legitimate and compelling state interest of protecting minors from Internet predators, the near total
ban on Internet access imposed by the Act unreasonably restricts many ordinary activities that have become important to
everyday life in today’s world.”

Shortly after this court ruling, Louisiana passed HB 620, [50] reinstating the social media ban (and also adding a provision that
requires registrants to disclose their registry status on their allowed social media profiles) while rewording the law in hopes of
passing Constitutional muster.

North Carolina: The state had appealed the state’s appellate court decision which had found NC’s social media ban was not
narrowly tailored, vague, lacks clarity, overbroad, and ultimately unconstitutional on its face. [51] The NC Supreme Court
reversed the appellate court’s ruling; they found “the essential purpose of section 14–202.5 is to limit conduct, specifically the
ability of registered sex offenders to access certain carefully-defined Web sites. This limitation on conduct only incidentally
burdens the ability of registered sex offenders to engage in speech after accessing those Web sites that fall within the statute’s
reach. Thus we conclude that section 14–202.5 is a regulation of conduct.” The state Supreme Court determined the state’s
social network bans does not govern speech (which requires strict scrutiny), but is merely a “content neutral regulation,”
which is only subject to the lower legal standard of “intermediate scrutiny.” [52]

The Packingham case was accepted for SCOTUS review in 2016.


The most obvious Constitutional argument is the 1st Amendment right to free speech. It is also evident that social media
should receive full First Amendment protection. An article in the Indiana Law Review presents a number of reasons why
registered citizens (and felons in general) have the full protection of the 1st Amendment if one is not on supervision: “The
lower federal courts that have examined the First Amendment rights of felons have found that these individuals are protected
by the amendment’s breadth. All four of the federal courts that have examined sex offender social media bans have either
impliedly or explicitly assumed that the individuals covered by the statutes were entitled to full First Amendment protection…
As discussed earlier, a significant amount of political discourse takes place via social media, and the Supreme Court considers
political speech to be the ‘core’ of the First Amendment. Beyond core political speech, social media allows users to take part
in other activities that have been traditionally thought to be within the purview of the First Amendment. One commentator has
even made the argument that the First Amendment protects activities that are only possible through social media, such as
clicking Facebook’s ‘like’ button—which allows a user to express their appreciation for a particular piece of shared content.
For all of the previously discussed reasons, sex offenders’ and other felons’ right to access social media is fully protected by
the First Amendment and should continue to be for the foreseeable future.” [53]


Eugene Volokh explains that, “The Supreme Court has held that content-neutral speech restrictions (e.g., limits on noise, on
the size of demonstrations, and so on) can be upheld if they are “narrowly tailored” to an “important government interest” and
leave open “ample alternative channels” for expression. Thus, relatively modest burdens on speech (ones that leave open
ample alternative channels) are subject to relatively government-friendly review (the requirement that the law be narrowly
tailored to an important government interest, with “narrow tailoring” being read in a not especially strict way). But more
serious burdens on speech (ones that don’t leave open ample alternative channels) are subject to far more demanding
scrutiny.” In criticizing the NC Supreme Court’s decision, Volokh notes that while the law prohibits NC registrants from
LinkedIn, Instagram, Reddit, Myspace, and the New York Times Web site, the statute left open access to such social media
sites as the Paula Deen Network, WRAL (a local TV station), (an online job searching tool), and Shutterfly;
Volokh noted, “This looks more like a parody of the ‘ample alternative channels’ analysis than a serious application of that
analysis.” [54]

Volock points out that “sites such as Facebook and Twitter have become a prominent and uniquely effective form of
communication for which there is virtually no equivalent substitute,” noting 71% of American adults use Facebook and 28%
use Pinterest and LinkedIn, and 77% of employers use popular social media to recruit candidates. Facebook also lets users as
readers get a wide range of information that originates or first becomes widely spread on Facebook. [55] Law professor Noah
Feldman is in the minority among his peers by arguing that there are “ample” alternatives to Facebook and other popular social
media. “There’s no disputing the ubiquity of social media. But there are still other ways to express your ideas and
communicate with other humans. Without social media, I can still create content and publish it. I can read a vast array of
opinions of others. And I can communicate directly with other people, through e-mail and other platforms.” [56] David Post
counters that “Communicating via website, or email, is not an alternative to communicating via social networking, because
social networking is a social activity in a way that other media are not — that’s precisely what has made it so powerful and so
indispensable for a vast array of communication.” [57]

Volock joined of Profs. Ashutosh, Bhagwat, Richard Garnett, Andrew Koppelman, Seth Kreimer, Lawrence Lessig, Sanford
Levinson, Robert O’Neil, David Post, Lawrence Sager, Seana Shiffrin, Steven Shiffrin, Geoffrey Stone, Nadine Strossen,
William Van Alstyne, and James Weinstein in writing a brief in support of the petitioner in Packingham v NC case. [58] A
centerpiece of their argument against the NC social media ban is City of Ladue v. Gilleo, [59] a case that struck down a law
that banned all residential signs but those falling within 1 of 10 exemptions, for the principal purpose of minimizing the visual
clutter associated with such signs. SCOTUS ruled regulating yard signs affected communication itself, the law “foreclosed an
important and distinct medium of expression to political, religious, or personal messages,” and “alternatives such as handbills
and newspaper advertisements are inadequate substitutes for the important medium that Ladue has closed off.” The Amicus
brief notes, “Like in City of Ladue, there is no adequate alternative to the communicative impact of the forbidden social
media… The Sixth, Seventh, and D.C. Circuits hold that alternative channels are ample only if they let a speaker reach
essentially the same audience. The North Carolina Supreme Court holds that they are ample even when they reduce the
speaker to a tiny fraction of his potential audience. And the Second and Ninth Circuits have precedents going both directions,
without confronting the disagreements among the precedents.”

But there is one important aspect that the legal experts seemed to have overlooked—many online media outlets use popular
social media commenting programs that are banned by NC’s law. Bloomberg View, where Noah Feldman’s Op-Ed is
currently published, uses the Disqus system for commenting; Disqus allows folks as young as 13 create profiles. In addition,
the Op-Ed also proves a prompt to follow Feldman on Twitter as well as offer an email address. [60] In order to respond to
Feldman’s article, I’m given three options here—Disqus, Twitter, and email—but only two are public forums in which my
comments could be directly read by others with an interest in the article’s subject matter and reader’s opinions. The ban
would sever any way to legally communicate with this person, as his Disqus profile lacks detailed personal information. One
comment from a person with the user name “FrankAboutPolitics” responded, “How should they publish their content?
WordPress is social media too, and has teen users.” [61] If registered citizens were banned from Disqus, how could I
communicate with this anonymous poster to ask him to elaborate further? Some media outlets do not offer comments on a
website, but operates a Facebook page for the purpose of discussing news stories. [62]

Facebook is by far the largest social media outlet, accounting for 42.4% of all social media visits in October 2016, almost
double the market share for Youtube (24.9%), eight times the market share for Twiter (5.2%) and about 35 times the market
share for LinkedIn (1.2%). [63] In addition, Facebook is also the most popular smartphone app, outperforming Google,
Youtube, and other social platforms with use by 79.9% by mobile phone users. [64] In recent years, a number of media
outlets have opted to use the Facebook-only commenting system under the guise of “increasing civil discussion,” including
ESPN, USA Today, the Miami Herald, and the Chicago Tribune. [65] (Note: By “Facebook-only commenting, I am referring
to requiring a Facebook account to login and make comments on the webpage actual webpage of the original article, not the
practice of having discussions on the media outlet’s official Facebook page.) Currently, registered citizens cannot have a
Facebook page as it violates the company’s Terms of Service, so Facebook already censors the rights of registered citizens
the opportunity to express their opinions online without creating fake accounts.

Still, a number of Anti-Registry organizations, including, have official Facebook pages, [66] as it is currently
not illegal to maintain business accounts with unpopular messages. In the Packingham case, the petitioner’s brief poses a good
question, stating, “In its waning pages, the Opposition asserts, remarkably, that petitioner would not have run afoul of Section
202.5 had he asked a friend to access Facebook, post his ‘God is great’ comment, ‘and directly attribute the message to
[petitioner].’ Opp.35. This late-breaking ‘alternative’ unravels the State’s principal arguments: If that means of expression is
outside Section 202.5’s ambit, then, a registrant presumably may have a friend gather and print profile information about
members of a high school cheerleading squad—even while North Carolina continues to punish as felons persons accessing
sites themselves for no other purpose than to follow current events.” [67] However, not every person has access to non-
registered persons capable of running Facebook pages on the behalf of another. In those cases, how can registered citizens
share their ideas with other individuals on sites offering Facebook-only commenting? However, how does one maintain a page
for another person if that person cannot have a Facebook page in the first place? Consider the fact that a number of states
have pushed to ban prison inmates from social media even if the sites are run by third parties.  In addition, if a registered
citizen is on the registry, his or her account can be deleted even if a third party runs the page.  

Just as the Internet has helped organize larger movements like the Arab Spring, [69] Black Lives Matter, [70] and the Occupy
Movement, [71] the Internet has been instrumental to the Anti-Registry Movement from the earliest days of the Internet. One
of the first forums for registered citizens was Sex Offender Solutions & Education Network (SOSEN), which began as a
Yahoo Group in 2003. [72] Yahoo’s only requirement for Yahoo Groups [73] is to have a Yahoo Account, which also allows
those as young as 13 to open accounts without parental consent. [74] Thus, SOSEN’s Yahoo Group would have been
outlawed under NC’s social media bans. In addition,, like other anti-registry activist groups, have relied
heavily upon social media forums and social media-run comment sections on media articles to spread its message over the
years, so banning registrants from Facebook alone has already made a negative impact on the ability of our Movement to
spread our message of legal reform.

The claim that banning registered citizens from popular social media, even if they were only legally banned from Facebook
alone, does not leave “ample alternative channels” for expression. The activities of online citizen activist groups will be
severely compromised, as the target audience will not be legally allowed to access Facebook.


It seems rather ironic that a number media outlets are opposed to anonymous comments, especially considering most
individuals prefer to leave comments anonymously. (A key selling point for Disqus is that pseudonyms account for 61% of
comments made through their services.) [75] Facebook-only commenting policies have angered a number of individuals who
do not feel safe discussing sensitive topics online. The outrage was particularly harsh when the Huffington Post switched to
Facebook-only commenting. [76]

While many regular Americans fear the worst acts related to the Internet, in including “doxing” (the practice of using the
Internet to source out and collect someone’s personal and private information and then publicly releasing that information
online), [77] or ‘Swatting” (making a false emergency call to the police in an attempt to get a SWAT team to show up at the
doorstep of a target), [78] this fear is especially strong for those forced to register as “sex offenders.” On April 25, 2016, a
Facebook page called (a site connected to Chuck Roderick, a man who has been sued for extorting
registered) made an attack post on founder Derek Logue while posting a link to a known extortion website.
[79] A number of local individuals made threatening remarks on this Facebook posts, including one made by a former
neighbor, a former co-worker, and a manager at a store in the neighborhood who responded to a threatening remark about
asking for a current location so this person can ‘get him.” This is merely one example that illustrates the need for registered
citizens to be legally allowed to speak anonymously while online.

The EFF notes, “Many people don’t want the things they say online to be connected with their offline identities. They may be
concerned about political or economic retribution, harassment, or even threats to their lives. Whistleblowers report news that
companies and governments would prefer to suppress; human rights workers struggle against repressive governments;
parents try to create a safe way for children to explore; victims of domestic violence attempt to rebuild their lives where
abusers cannot follow. Instead of using their true names to communicate, these people choose to speak using pseudonyms
(assumed names) or anonymously (no name at all). For these individuals and the organizations that support them, secure
anonymity is critical. It may literally save lives.” Anonymous speech has been a celebrated right from the founding of the
USA, and “anonymity is the shield from the tyranny of the majority.” [80]

The Courts, sadly, have been bipolar on the rights of registered citizens to be anonymous on the Internet. On September 27,
2016, the US District Court for the Norther District of Florida filed a preliminary injunction against a Florida law which
modified and expanded the definition of Internet identifiers, stating The definition is hopelessly vague, chills speech protected
by the First Amendment, and is far broader than necessary to serve the state’s legitimate interest in deterring or solving online
sex crimes.” [81] Just a few weeks later, the Illinois Supreme Court upheld a similar law using the weak “intermediate
scrutiny.” The logic of this Court is especially disturbing. “We conclude that the Internet disclosure provision advances the
substantial governmental interest of preventing sex offenses against children and protecting the public from the danger of
recidivist sex offenders. The disclosure provision identifies the locations on the Internet to which the sex offender has
transferred expressive material from his computer or has otherwise engaged in communication. These disclosures empower
the public, if it wishes, to make the informed decision to avoid such interactions. The information required for the public to
protect itself is broad because any communication by a sex offender with the public is related to the statutory purpose.” [82]
Law professor heavily criticized the Illinois case:

“Any communication by a sex offender with the public is related to the statutory purpose (including, one must suppose, Mr.
Minnis’s declaration that he “likes” Lady Gaga’s new album, or that his soccer club is meeting on Wednesday night, or that
he’s really pissed off about the pace of construction on I-80 outside of Rockford, Ill., … anything, in other words, that might
appear on his Facebook page or that he might post on the Facebook pages of others), so burdening all of Minnis’s speech —
eliminating the right to speak anonymously for all of his online communications — is necessary to serve that purpose. If that’s
all it takes to satisfy the Constitution, anonymous online communication is, for all intents and purposes, a dead duck.
Remember: first they came for the Socialists…” [83]

The Amicus brief by the Electronic Privacy Information Center notes the government is spending large sums of money to
monitor all online activity as well as unwarranted investigations into the online activity of registrants, including the Facebook
post from Mr. Packingham declaring “God is good.” The law essentially requires law enforcement to engage in wholesale
monitoring in order to be effective. [84]


Louisiana’s current social media law requires registered citizens, among other things, to disclose their registrant status on their
allowed social media accounts. Obviously, this interferes with the ability to speak anonymously online, but the government
takes this interference to the next level as it forces the individual to carry an unpopular government message. “Just as the First
Amendment may prevent the government from prohibiting speech, the Amendment may prevent the government from
compelling individuals to express certain views…” [85] SCOTUS has also held that states cannot compel a citizen to display a
message offensive to one’s moral convictions [86] or force one to engage in forms of expression contrary to one’s personal
beliefs. [87] In addition to forcing the registrant to place a government message on an individual’s social media account, the
state triggers the removal of that social media account from Facebook altogether, as registered citizens are not allowed to
maintain Facebook pages. Thus, the government is compelling a private business to aid it in bypassing constitutional


Regardless as to the level of scrutiny social media bans are given, there simply is no way to narrowly tailor the laws to simply
prevent registered citizens from soliciting minors through social media. “These bans are not narrowly tailored because (1) the
conduct they seek to proscribe is already illegal, (2) they apply to more offenders than necessary, and (3) the definitions they
use to describe the forbidden websites and utilities are too expansive.” [88] Indiana, Louisiana and Nebraska already have laws
on the books that make soliciting a minor using electronic communication, [89] thus making social media bans redundant
from a punishment perspective. In addition, none of these states limited the bans to those who solicited minors through social
media in the past; none of the courts even heard any stats claiming registered citizens were any more likely to solicit minors
online than non-registrants. [90] Legal definitions of banned media were also subject to broad interpretation; Nebraska’s law
could have been read in a manner that would make text messages through cellular phones illegal;  Louisiana’s statute applied to
too many websites, which even included the Louisiana district court website. [91]


The Amicus brief written by the Cato Institute in the Packingham case also points out NC’s social media ban is
“impermissibly vague” and violate the Due Process Clause, noting, “In particular, Section 202.5 requires those covered by the
state to determine whether a given website ‘permits’ use by minors, whether in fact or in policy. An ordinary citizen’s inability
to answer those questions makes it impossible to know in advance what conduct is proscribed and, at the same time, bestows
on law enforcement virtually unbounded discretion to arrest and charge citizens for alleged violation. The Due Process Clause
requires more. Especially where First Amendment freedoms are implicated and the risk of chilling protected expression falling
outside the statute’s purview is high, legislatures must act with the utmost specificity. Yet Section 202.5 lacks the basic
specificity for North Carolinians to determine where the statute’s ambit ends and their freedom from criminal prosecution
begins.” [92]

“Legislation that either ‘fails to give ordinary people fair notice of the conduct it punishes’ or that is ‘so standardless that it
invites arbitrary enforcement’ violates the Due Process Clauses of the Fifth and Fourteenth Amendments.” [93] The brief
argues that Section 202.5 does not specify what it means for websites to “permit” minors to become members or maintain
personal Web pages. The NC Supreme Court noted such vagueness but stated the person could have gleaned the information
from the site’s Terms of Use, which is posted on the possibly prohibited website. [94] Thus, one may possible break the law
just to see if that website is prohibited in the first place.

The Amicus brief by the Electronic Frontier Foundation further argues NC’s definition of “Internet web site’ is also extremely
vague. It points out that a single Internet website, like Google, offers numerous services including a search engine, email
services, a translation service, a news aggregator, a scholarly research tool, and a photo sharing service, in addition to
Google+, its own social networking service. All of these interconnected web pages constitute the “Google web site.” [95]


The label of “registered sex offender” should not inhibit our free speech as freed citizens. The fact that a State may not
burden “a narrow class of disfavored speaker” is well established in the courts, [96] and Courts have frequently condemned
the act of discrimination among different users of the same medium of expression, [97] and that targeted laws would prevent
registrants from expressing viewpoints unique to our arbitrary labels the government has bestowed upon us. [98] As
previously stated, anti-registry activism is an activity unique to registered citizens and their loved ones who are suffering the
negative effects of these laws. If the NC laws are upheld, our ability to recruit new members, share opinions, and organize
activists to fight bad legislation are all extremely hampered.


The arguments of agencies supporting the NC social media bans are weak and rely heavily on the same tired myths of “high
recidivism” and claiming there are ample alternatives to Facebook or other popular social media banned by the law. The
Amicus brief filed by the state of Louisiana (whose own laws will be impacted by this law) makes the argument personal by
claiming that Packingham defied the law not for the purpose of exercising his Constitutional rights but the result of “poor
impulse control” which they claim is “more indicative of recidivism than expressive activity.” Thus, the Louisiana brief
laughably concludes, “While North Carolina has no gruesome facts to tell about this case, its actions (and the evidence that
supports them) suggest that it protected society.” [99] Aside from a few extremist atheists who feel God should not be
uttered anywhere, one may find it difficult to find people who feel “protected” knowing that Packingham is off the streets for
proclaiming God is good on the Internet.

The Amicus brief by “Stop Child Predators” and “Shared Hope International,” two victim industry organizations, fails to cite
any court cases other than McKune v Lile [100] and Smith v Doe, [101] which cited McKune when it made the erroneous
claim that recidivism rates for registered persons are “frightening and high.” In 2015, legal researchers Ira Mark Ellman and
Tara debunked the High Court’s faulty claim. “McKune provides a single citation to support its statement “that the recidivism
rate of untreated offenders has been estimated to be as high as 80%”: the U.S. Dept. of Justice, Nat. Institute of Corrections,
A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender xiii (1988). Justice Kennedy likely found that reference
in the amicus brief supporting Kansas filed by the Solicitor General, then Ted Olson, as the SG’s brief also cites it for the
claim that sex offenders have this astonishingly high recidivism rate. This Practitioner’s Guide” itself provides but one source
for the claim, an article published in 1986 in Psychology Today, a mass market magazine aimed at a lay audience. That article
has this sentence: ‘Most untreated sex offenders released from prison go on to commit more offenses-indeed, as many as
80% do.’ But the sentence is a bare assertion: the article contains no supporting reference for it. Nor does its author appear to
have the scientific credentials that would qualify him to testify at trial as an expert on recidivism. He is a counselor, not a
scholar of sex crimes or re-offense rates, and the cited article is not about recidivism statistics. It’s about a counseling
program for sex offenders he then ran in an Oregon prison. His unsupported assertion about the recidivism rate for untreated
sex offenders was offered to contrast with his equally unsupported assertion about the lower recidivism rate for those who
complete his program. [102] In fact, dozens of state, federal, and independent university studies have all concluded that sexual
re-offense by those forced to register as “sex offenders,” are consistently low, not even a tenth of the erroneous 80% claim
mentioned in McKune. [103] Instead, this brief relies on anecdotal and irrelevant examples to justify their dubious claims.

The final Amicus brief supporting the Council of State Governments et al., makes a less-than-compelling argument that the
standard should be intermediate scrutiny because the law is content-neutral. [104] These arguments have been covered
thoroughly in this report.

On June 19, 2017, The US Supreme Court ruled 8-0 (Neil Gorsuch wasn’t able to rule on the case) that registered citizens
have a right to social media.

Writing for the Majority opinion, Justice Kennedy (joined by justices Ginsburg, Breyer, Sotomayor and Kagan) wrote:

“This background informs the analysis of the North Carolina statute at issue. Even making the assumption that the statute is
content neutral and thus subject to intermediate scrutiny, the provision cannot stand. In order to survive intermediate scrutiny,
a law must be ‘narrowly tailored to serve a significant governmental interest.’ McCullen v. Coakley, 573 U. S. ___, ___ (2014)
(slip op., at 18) (internal quotation marks omitted). In other words, the law must not “burden substantially more speech than
is necessary to further the government’s legitimate interests.” Id., at ___ (slip op., at 19) (internal quotation marks omitted)…

” it is clear that a legislature “may pass valid laws to protect children” and other victims of sexual assault “from abuse.” See
id., at 245; accord, New York v. Ferber, 458 U. S. 747, 757 (1982). The government, of course, need not simply stand by
and allow these evils to occur. But the assertion of a valid governmental interest “cannot, in every context, be insulated from
all constitutional protections.” Stanley v. Georgia, 394 U. S. 557, 563 (1969)….”

“Social media allows users to gain access to information and communicate with one another about it on any subject that might
come to mind. Supra, at 5. 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.
They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could
from any soapbox.” Reno, 521 U. S., at 870.”

“In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First
Amendment rights. 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.” …
“If a law prohibiting ‘all protected expression’ at a single airport is not constitutional, Board of Airport Comm’rs of Los
Angeles v. Jews for Jesus, Inc., 482 U. S. 569 (1987), at 574 (emphasis deleted), it follows with even greater force that the
State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our
modern society and culture.”

“It is well established that, as a general rule, the Government ‘may not suppress lawful speech as the means to suppress
unlawful speech.’ Ashcroft v. Free Speech Coalition, 535 U. S., at 255. That is what North Carolina has done here. Its law
must be held invalid.”

It seems a rather moot point to discuss the concurring opinion of Justice Alito (joined by Justices Roberts and Thomas), but
should be discussed because it illustrates the need to educate even Supreme Court Justices on separating myth from fact
about the perceived threat posed by people on the registry. The argument begins with the claims of high recidivism rates and
the misused stat of registered persons being “more likely to reoffend” than non-offenders.

“The State’s interest in protecting children from recidivist sex offenders plainly applies to internet use…Because protecting
children from abuse is a compelling state interest and sex offenders can (and do) use the internet to engage in such abuse, it is
legitimate and entirely reasonable for States to try to stop abuse from occurring before it happens.”

“It is not enough, however, that the law before us is designed to serve a compelling state interest; it also must not “burden
substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U. S., at 798–799;
see also McCullen v. Coakley, 573 U. S. ___, ___–___ (2014) (slip op., at 18–19). The North Carolina law fails this
requirement…The fatal problem for §14–202.5 is that its wide sweep precludes access to a large number of websites that are
most unlikely to facilitate the commission of a sex crime against a child…”

“While I thus agree with the Court that the particular law at issue in this case violates the First Amendment, I am troubled by
the Court’s loose rhetoric. After noting that “a street or a park is a quintessential forum for the exercise of First Amendment
rights,” the Court states that ‘cyberspace’ and ‘social media in particular’ are now ‘the most important places (in a spatial
sense) for the exchange of views.’ Ante, at 4–5. The Court declines to explain what this means with respect to free speech
law, and the Court holds no more than that the North Carolina law fails the test for content-neutral ‘time, place, and manner’
restrictions. But if the entirety of the internet or even just ‘social media’ sites are the 21st century equivalent of public streets
and parks, then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offenders.
May a State preclude an adult previously convicted of molesting children from visiting a dating site for teenagers? Or a site
where minors communicate with each other about personal problems?”

The words of the three concurring justice should raise some red flags to those hoping for SCOTUS intervention on other sex
offense laws. With Gorsuch being appointed to be a Conservative replacement for Scalia, we’re likely to retain the formula of
four liberal justices and four conservative justices with Kennedy acting as a swing vote. In the meantime, this case should
spell the end for sweeping bans against registrants on social media.
The Packingham ruling left challenges to Internet restrictions open there have been numerous decisions, some good and some
bad, have decided if/when Internet bans can be imposed as a supervision condition. It seems only a matter of time before
SCOTUS revisits this issue, especially given the split between US Circuit courts, with the 3rd, 4th, and 5th Circuits ruling in
favor of the right to Internet access for Registrants on supervision, while the 4th, 8th, and 11th Circuits upheld various
Internet bans while under supervision. (Note that the 4th Circuit make both a favorable and unfavorable ruling on Internet use
while on supervision). There is also a split in state-level courts on the subject of Internet identifier disclosure (which impacts
the right to free and anonymous speech); New York dismissed a charge for failing to disclose a Facebook page under the
state’s eSTOP law, while New Jersey and Florida have upheld criminal convictions based on failure to disclose Internet

Favorable rulings:

  • US v. Ellis, No. 19-4159 (4th Cir. 2021): Opinion vacating conditions of supervised release banning individual from the
    internet, and from possessing legal pornography.
  • State v. Hotchkiss, No. 2020 MT 269 (MT 2020): MT Sup Ct opinion reversing a trial court’s imposition of conditions of
    supervision restricting internet access, where the underlying offense had no nexus with the internet.
  • US v. Becerra, 977 F.3d 373 (5th Cir. 2020): Vacating, on plain error review, a supervised release condition that imposed a
    ten year ban on internet and computer usage.
  • US v. Herndon, No. 18–50541 (5th Cir. 2020): Vacating various conditions of supervised release imposing bans on internet
    access, computer use, and other activities and remanding for re-sentencing.
  • State v. RK, No. A-2022-18T2 (NJ Super. Ct. App. Div. 2020): NJ appellate court finding that blanket social media ban
    imposed on people on supervised release was unconstitutional under the 1st Amendment
  • US v. Arbaugh, No. 18–4575 (4th Cir. 2020): Opinion affirming in part a federal sentence for engaging in illicit sexual conduct
    with a minor in a foreign country, but reversing in part on the grounds that the district court failed to articulate reasons
    supporting computer-related conditions of supervised release.
  • Fazili v. Commonwealth, No. 1379-18-4 (VA Ct. App. 2019): VA Court of Appeals reversing trial court’s imposition of general
    Internet usage restriction as a condition of probation without articulating why such a condition would be narrowly tailored.
  • US v. Eaglin, 913 F.3d 88 (2nd Cir. 2019): Reversing trial court imposing Internet ban and prohibition on viewing
    pornography as substantively unreasonable conditions of federal supervised release.
  • US v. Holena, 906 F.3d 288 (3rd Cir. 2018): In context of revocation of Supervised Release, reversed imposition of lifetime
    internet use ban.
  • Weida v. State, 94 N.E.3d 682 (IN 2018): IN Sup Ct holding that requirement that person on supervision for sex offense
    obtain approval from probation officer to access Internet was unreasonable.
  • People v. Ellis, No. 54 (NY 2019): NY Court of Appeals reversing decision of a trial court in refusing to dismiss an indictment
    charging Appellant with violating NY’s e-stop law for failing to disclose a Facebook account.
  • Doe v. Tilley 283 F.Supp.3d 608 (ED KY 2017): Federal civil rights lawsuit striking down KY state social media ban and
    Internet identifier registration requirements.
  • US v. Malenya, 736 F.3d 554 (DC Cir. 2013): DC Circuit Court of Appeals opinion reversing imposition of conditions of
    supervised release which, amongst others, prohibited defendant from using or possessing a computer or accessing any online
    service without prior approval.
  • State v. Cornell, 146 A.3d 895 (VT 2016): VT Sup Ct reversal finding varied conditions of probation were overbroad and
  • JI v. NJ State Parole Board, 155 A.3d 1008 (NJ 2017): NJ Sup Ct reversal of parole boards imposition of condition that
    registrant was banned from using internet-capable devices.

Unfavorable rulings:

  • US v. Hamilton, No. 19-4852 (4th Cir. 2021): Opinion vacating lifetime supervised release conditions relating to employment
    where there was no connection between employment and the offense of conviction, but upholding two other conditions
    related to internet use and presence restrictions.
  • US v. Bobal, No. 19–10678 (11th Cir. 2020): Lifetime computer restrictions for an individual on supervised release did not
    violate the 1st Amendment.
  • US v. Carson, No. 17–3589 (8th Cir. 2019): Affirming imposition of social media-related restrictions for individual on federal
    supervised release.
  • Iowa v. Aschbrenner,  No. 18–1045 (Iowa 2019): IA Sup Ct Opinion affirming the conviction of Appellant who was charged
    with violating Internet Identifier reporting requirements over challenges based on Ex Post Facto and 1st Amdt grounds.
  • Delgado v. Swearingen, No. 16-CV–501 (ND FL 2018) Held, in context of civil rights lawsuit under 1st & 14th Amendments,
    those FL statutes requiring those on SOR provide Internet identifiers to authorities were constitutional, though enjoined FDLE
    from public disclosure.

Another reader of my websitepointed out something else that may be useful for fighting such restrictions:

  • 18 USC 3593 (d)(2) establishes any special conditions of supervised release must entail “no greater deprivation of liberty than
    is reasonably necessary for the purposes” of sentencing articulated in 18 USC 3553(a)(2)(B),(a)(2)(C), and (a)(2)(D).
  • US v Scott, 316 F.3d 733 (7th Cir.2003): VACATED AND REMANDED special condition of supervised release requiring
    agent consent to access the Internet.
  • US v Holm, 326 F.3d 872 (7th Cir.2003):VACATED AND REMANDED condition of probation banning computer and
    Internet access, despite serving sentence for posessing 10,000-20,000 images of CP.


The courts have sided with the rights of registered citizens more often than not in regards to our right to use social media or
the Internet in general, though some registrants, particularly those on probation/ parole, continue to suffer from strict
limitations on Internet usage. Victim industry advocates and government agencies continue to spread debunked myths to
justify wholesale banishment of registrants from social media. Our concern was that if SCOTUS sides with the state, we may
see an increase of social media or Internet restrictions in the US, a law currently in place only in three US States and one US
Territory (not counting state laws impacting those on supervision), but ultimately, SCOTUS ruled on side of reason.

  1. Logue, Derek. “Sight Crime: The Complexity of Federal Child Pornography & Obscenity Laws.”
    Web. Nov. 14, 2016. Web. <http://www.>
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  6. Initially H.R.3783 — 105th Congress (1997-1998), but was consolidated into the Omnibus Consolidated and
    Emergency Supplemental Appropriations Act, H.R.4328 — 105th Congress (1997-1998), Title XIV under
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  10. H.R.4123 — 104th Congress (1995-1996)
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  36. Ibid., p.5-6
  37. “Welcome to Safety Zone Advocacy.” Safety Zone Advocacy. 2015. Web. <>
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    (23), 2C:43-6.4(f)(1); NY Pen. Law 65.10(4-b); S.C. CA 23-3-3555;  TX GCA 508.1861(b)
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  45. Ibid.
  46. Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010)
  47. Doe v. Nebraska, 898 F.Supp.2d 1086 (D. Neb. 2012)
  48. Doe v. Prosecutor, Marion County, Indiana, 705 F. 3d 694 (2013)
  49. Doe v. Jindal, U.S.D.C. (M.D. La.), Case No. 3:11-cv-00554-BAJ-SCR (2012)
  50. HB 620 (2012), Act No. 205, Effective 1 Aug 2012 <>
  51. State v Packingham, 748 S.E.2d 146 (N.C. Ct. App. 2013)
  52. State of North Carolina v. Packingham, No. 366PA13 (NC Sup Ct. 2015)
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    Washington Post. 25 Apr 2016. Web. <
  55. Ibid.
  56. Feldman, Noah. “LAW: Sex Offenders Don’t Have a Right to Facebook.” Bloomberg View. 12 May 2016. Web. <https:
  57. Post, David. “On ‘ample alternative channels of communication,’ the First Amendment, and social networking.”
    Washington Post. 16 May 2016. Web. <
  58. Petition at
  59. City of Ladue v. Gilleo  512 U.S. 43 (1994)
  60. Disqus Terms of Service, <>
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    <>, The site
    dos not contain an area for comments. However, the same media outlet created a Facebook post for the article at
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  87. West Virginia State Bd. of Educ. v. Barnette 319 U.S. 624 (1943)
  88. Supra, note 53, at 1351
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    STAT. ANN. § 28-320.02 (LexisNexis 2009).
  90. Id., at 1353
  91. Id., at 1355
  92. Brief for Amici Curiae the Cato Institute, the ACLU, and the ACLU of NC in support of Petitioner. Packingham v NS,
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  93. Id. At 18, citing Johnson v US, 135 S. Ct. 2551, 2556 (2015)
  94. Id., at 20.
  95. Amicus Curiae brief of Electronic Frontier Foundation, Public Knowledge, and Center for Democracy in Support of
    Petitioner. Packingham v. NC, SCOTUS Docket # 15-1194, found at <
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    310, 340-341 (2010) [depriving “the disadvantaged person or class of the right to use speech” undermines their ability
    “to establish worth, standing, and respect”]; Arkansas Writers’ Project, Inc. v Ragland, 481 US 221, 232 (1987) [state
    “cannot justify selective taxation of certain publishers”]; Niemotko v Maryland, 340 US 268, 272 (1951) [denial of park
    permit to Jehovah’s Witnesses because of “dislike for… the Witnesses” was unconstitutional]
  97. Id., citing Poloce Dept. of the City of Chicago v Mosley, 408 US 92, 96 (1972)
  98. Id., citing Sorrell, 564 US at 565, RAV v City of St Payl, 505 US 377, 391 (1992), City of Ladue v. Gilleo, 512 U.S.
    43, 56 (1994)
  99. Brief of Amici Curiae State of Louisiana and Twelve Other States in Support of respondent. Packingham v. NC,
    Docket No. 15-1194, found at <
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