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When the Dateline NBC program “To Catch a Predator” premiered in 2004, it gave television viewers an unprecedented look at the use of the internet by those intent on committing sexual crimes against minors. The show set up decoys posing as underage teens, usually between 13-15 years old, to chat with adult strangers online—when the adults set up in-person meetings to have sex with someone they believed was a minor, they were busted, interviewed by the show’s host Chris Hansen and then arrested and often prosecuted on a variety of charges for their attempts. The show was one of the first inside looks at the nature and prevalence of online predation, and nearly a decade after the show's end, the sexual solicitation of children online remains a concern for many. 

Early this week, the U.S. Supreme Court ruled in favor of convicted sex offender Lester Packingham, who argued that the state of North Carolina’s ban of registered sex offenders from all social networking sites violated his First Amendment rights.

The Supreme Court agreed with Packingham, saying the “sweeping” ban, which included websites like Facebook, LinkedIn and Twitter, but also sites like Amazon, Web MD and the Washington Post, was unconstitutional under the First Amendment. The court said in its opinion that the state failed to prove that the broad law was necessary to protect children, but that their decision would allow for the state to form more “specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime.”

To better understand this issue and the Supreme Court’s decision, I spoke with First Amendment lawyer Samuel Ventola, as well as lawyer and visiting criminal law scholar at the University of Houston Law Center Melissa Hamilton, who is also a former police officer and former corrections officer.

“Generally governments cannot place limits on where or how speech takes place. The courts do allow some ‘time, place and manner’ restrictions to protect safety and the rights of others,” said Ventola, noting that, for example, picketing on islands in the middle of a highway is illegal due to it being a potentially dangerous distraction. The oft-quoted example of falsely yelling “Fire!” in a crowded theater also comes to mind.

“Here the restriction was designed to prevent the defendant from communicating with minors. That would have been allowed—except that the restriction they imposed prevented communicating with adults as well,” Ventola added. In the case of Packingham, none of his Facebook posts were directed at children or otherwise illegal in nature—it was simply being on the site that got him convicted of a felony under the law.

“Because the defendant's actual speech was not harmful, the fact that it could reach children did not make it prohibited,” Ventola said. Importantly, however, Ventola said the situation may have been different if the restriction was imposed as a parole requirement, for example, instead of a statute.

“Although people generally have broad rights to speak on social media, we lose constitutional rights when we are convicted of serious crimes,” he noted.

The state argued in this case, according to the Associated Press, that banning registered sex offenders from social media was akin to common restrictions on where offenders can go or live—for example, many states ban sex offenders from being within a certain distance of a school or a park. The court was not swayed by this argument, however, noting the vast array of functions served by the websites included under the ban—sites that allow people to exchange ideas, debate, stay updated on current events, find job opportunities, buy and sell items and services, and more.

“This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet,” the court’s opinion states. “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.”

North Carolina’s ban of sex offenders from social networking sites lost the First Amendment battle in this case, but the question still remains—what risk might these offenders pose if they are allowed to be on social media sites?

Sex crimes expert Hamilton says the risk is actually much lower than one would think, and this is part of why the state lost its case. While sexual predators can and do use the internet to target children, Hamilton says looking at data on sex crimes and sex offender recidivism shows that broad bans such as those in North Carolina, in addition to being unconstitutional, are not the most effective solution for protecting young people.

“Researchers actually have indicated that, specifically (on) the social networking sites, there’s no evidence that children are at greater risk from known sex offenders or registered sex offenders. Indeed, the researchers conclude that children are at risk from anybody,” Hamilton said.

Thinking back to To Catch a Predator, I remembered that while the show caught dozens of men in several cities, the vast majority of those men weren’t registered sex offenders—they were seemingly “normal” people who were not on police’s radar to begin with.

In an essay she wrote about the case prior to the Supreme Court’s decision, Hamilton refutes the state’s argument that sex offenders have high recidivism rates when it comes to committing new sex crimes and that therefore their ban’s public safety benefit trumped the First Amendment rights of offenders. For instance, she points out that while the state presented findings from a 1994 Department of Justice study that showed convicted sex offenders were four times more likely to be rearrested for sex crimes than non-sex offenders, that same study also showed that the reconviction rate of sex offenders was only 3.5 percent—and that non-sexual offenders represented six times more new sex crime arrests than previously convicted sex offenders. The study also did not distinguish between sex offenders who were registered and those who were not.

Hamilton also points out, in her essay, that a study by the Crimes Against Children Research Center at the University of New Hampshire titled “Trends in Arrests of ‘Online Predators’” found that “96 percent of those arrested for soliciting minors online were not registered sex offenders.” Another University of New Hampshire study specifically assessing national data on online sex crimes against children concluded this: “SNSs (social networking sites) do not appear to present risk in and of themselves or a greater risk than other online sites where people can meet and interact.”

In my own research, I came across a 2015 Department of Justice report titled “Recidivism of Adult Sexual Offenders,” which compiled several research findings. While a large range of findings were presented, key conclusions included that recidivism increased over time, with an approximate 5 percent recidivism rate within a 3-year follow-up period and about a 24 percent rate after a 15-year period; that sex offenders had higher rates of general recidivism than sexual recidivism; that sex offenders had less general recidivism but more sexual recidivism than non-sex offenders; and that recidivism varied depending on the type of offender as well as the offender’s gender.

An essay from the American Psychological Association’s Monitor on Psychology also discusses the Packingham case. In it, the authors say “restricting sex offenders' access to social media may increase the experience of societal exclusion that already challenges this population. Research suggests that feelings of marginalization and isolation can prevent sex offenders from successfully reintegrating into society and, in turn, increase their likelihood of reoffending.”

I asked Hamilton what a better solution would be to protect children online from sexual predators.

“(Some research suggests) targeting education to the children as well as parental monitoring. For example, one reason that we believe very few young children are targeted on the internet is because parents are more likely to monitor young children’s internet use,” she said. “Public education campaigns and such have been shown to be pretty effective at teaching children how best to protect themselves and what to watch out for, and I think that’s why the studies are indicating that children are wary of it, and they know when it’s happening.”

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