The Digital Wilderness: A Decade of Exile & the False Hopes of Lester Packingham

Abstract

The United States Supreme Court’s decision in Packingham v. North Carolina announced that people who have been convicted of sex offenses have a First Amendment right to access social media platforms. In reaching its conclusion, the Court reasoned that the public square — and the communicative activity that the First Amendment protects — now exists on these platforms “in particular.” Despite Packingham’s promise of free speech for arguably the most despised, feared, and misunderstood group of people in America, it did not directly address ways in which both the state and private actors keep Packingham’s beneficiaries in digital darkness. As the rolls of America’s sex offense registries swell to near one million people in 2018, sustained exclusion from platforms that society increasingly relies on for civic engagement functionally cripples the ability of an enormous population of people to reintegrate, participate, and effectively challenge laws and policies that target them long after they have exited the criminal justice system. Far from being dangerous or illicit, the voices of people directly impacted are necessary to properly balance a system which has all but foreclosed redemption, and thus their inclusion gives life not only to the values at the heart of Packingham, but to our conception of justice as well.

Keywords: Sex Offender Registry, Freedom of Speech, Sex Offense Registration, Social Media