Supreme Court rules Sexual offenders can not be excluded from social media

What the decision stops is, state laws preventing sex offenders -as a class of offenders- from posting on social media sites. However that does not stop a specific site (i.e., FB) from saying, we will not allow posts from a known sex offenders.

8-8-17 Washington DC:

In a unanimous decision today, the Supreme Court overturned a North Carolina law (a state law)that prevents sex offenders from posting on social media where children may be present, saying it "inadmissibly restricts lawful speech." In doing so, the Supreme Court affirmed what we all know to be true: publication is essential for the survival of the republic.

The court ruled that "preventing access to social networks together is to prevent the user from engaging in the legitimate exercise of First Amendment rights." The court correctly noted that "one of the most important places to exchange opinions is cyberspace."

In 2002, when the petitioner, Lester Gerard Packingham was 21, he was convicted of having sex with a 13-year-old girl. In 2010, Packingham published an update on Facebook: "Man, God is good! How about I get so much favor that they dropped the ticket before the court, did they even start?" No fine, no court costs, nothing spent. Louise is GOD, WOW! Thank you, Jesus! "

This publication has led to an indictment and conviction under state law, making it a crime for sex offenders to access social networking sites that allow children to create accounts. ..Continued..

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Is Justice Alito's claim about sex offender rearrests true?

6-21-17 U.S. Sup Court:

Justice Alito made a misleading claim about recidivism rates among sex offenders in his concurring opinion for Packingham v. North Carolina. (Meg Kelly / The Washington Post) ..Source..

Unfortunately Justice Alito was reciting something "specific" from a earlier court case, and this is something that happens all too often, rather than the holding of the earlier case and comparing facts to whatever the current discussion is.

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In 2006 eAdvocate tested "Specialization" (rearrests)(which crime types were more likely to commit the same crime type again following conviction (true recidivism)). See Specialization: What is it, and why it is critically important to legislative vision? Here

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Supreme Court asked to review McLean County sex offender issue

6-4-17 Illinois:

WASHINGTON, D.C. — The U.S. Supreme Court has been asked to review a case against a Normal man to determine the constitutionality of Illinois' rules mandating that sex offenders report all their internet activity to authorities.

In a petition filed with the nation's highest court, lawyers for Mark Minnis, 24, are asking for a review of whether offenders' First Amendment rights are violated by a requirement that they report all internet activity to police who then disclose that information to the public.

Minnis was 16 when he was deemed a delinquent juvenile in 2010 for having sex with a 14-year-old girl. He was required to register as a sex offender for 10 years for criminal sexual abuse, a misdemeanor offense.

In August 2014, Minnis was charged with failure to register as a sex offender, a felony, after he failed to include a previously disclosed Facebook account on a registration form.

McLean County Judge Robert Freitag dismissed the charges on the grounds that the law is unconstitutional based on the breadth of information an offender is required to report.

The Illinois State Supreme Court reversed Freitag's ruling in a 2016 decision that recognized that the right to "publish and distribute writings while remaining anonymous" extends to internet speech but, the court ruled, that right is "not absolute."

Minnis' case is on hold in McLean County until a decision by the high court is made about whether to review the case.

In their petition, filed in February, Minnis' lawyers with the State Appellate Defender's Office note "the issues in this case have been percolating through state and federal courts for years now as variations of this scheme have proliferated across the states, part of a flood of ever-more draconian restrictions on sex offenders."

The Illinois Supreme Court decision is contrary to rulings in similar cases in other states, claim Minnis' attorneys. "Illinois is now a national outlier on this issue," said the court filing.

Defense lawyers also criticize Illinois' handling of youth sex offenders, citing research included in a state Juvenile Justice Commission report that juvenile sex offenders are "highly amendable to treatment and highly unlikely to sexually reoffend."

It opposing the review, the Illinois Attorney General's office argues that public availability of sex offenders' internet identities "allows the public to recognize sex offenders when they encounter them online, just as the public availability of sex offenders' current photographs allows the public to recognize sex offenders when they encounter them face-to-face."

People vs. Minnis is not an appropriate case for the First Amendment challenge, the state argues, because the information released on juvenile offenders is far less than what is available for adult offenders.

The Supreme Court heard arguments earlier this year in a North Carolina case involving a sex offender charged with violating the state's ban on internet access. A decision in that case, along with a potential ruling in the Minnis matter, could change sex offender rules across the nation. ..Source.. by Edith Brady-Lunny

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Court Grapples With Internet Restrictions on Registered Sex Offenders

5-4-17 Washington DC:

Lester Gerard Packingham Jr. ­celebrated the dismissal of a traffic ticket by posting "G-d is Good" on Facebook. He was then arrested and convicted of a felony for this post—North Carolina law prohibits registered sex ­offenders to access social media sites open to children. Now, the justices of the Supreme Court will determine whether this North Carolina law violates the First Amendment.

North Carolina law makes it a felony for any person on the State Sex Offender and Public Protection Registry to "access" any "commercial networking website" that he knows does not restrict membership to adults. Packingham was charged with a felony for violating the statute by accessing Facebook. A jury convicted Packingham, but the North Carolina Court of Appeals overturned his conviction, holding that the statute violates the First Amendment.

The North Carolina Supreme Court ­reversed and reinstated his conviction. The state Supreme Court first determined that the statute should be analyzed as a ­restriction on conduct, as opposed to speech, because the statute prohibits sex offender registrants from accessing the prohibited websites regardless of the content of the websites. The court also accepted the state's asserted interest in protecting ­children by ­preventing ­registered sex offenders from being able to "harvest information to facilitate contact with ­potential victims."

The U.S. Supreme Court granted review and heard oral argument on the case on Feb. 27. Packingham's counsel argued that the law is overbroad in restricting freedom of speech by requiring no proof of actual harm or misconduct, only that the person accessed a social networking website. He stressed the importance of social media and internet websites in the modern age, noting that Packingham could not read updates or respond to thousands of Twitter messages about his own case without committing a felony. Counsel for the state argued that the statute is narrowly tailored to serve a significant government interest in protecting children from registered sex offenders. ..Continued.. by Stephen A. Miller 
and William A. Lesser, The Legal Intelligencer

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Friday the 24th at the US Supreme Court

3-24-17:

In a Conference Day session, the U.S. Supreme Court discussed an important case concerning the sex offense registry. News may come as soon as Monday, March 27th. The State of Michigan has asked the court to review a ground-breaking ruling by a lower federal court, the U.S. Sixth Circuit Court of Appeals. The Supreme Court discussed the request for review; review is granted in very few cases.

If they turn down the request – the 6th Circuit ruling remains intact and directly impacts the states in the 6th Circuit (Michigan, Ohio, Kentucky, Tennessee). If they grant review – anything can happen. If accepted for review, the case would not be heard until the Fall. Below are links to the 6th Circuit ruling, news headlines that explain its importance, and the documents for the Supreme Court review. –Bill Dobbs, The Dobbs Wire

Does v. Snyder – decision filed Aug. 25, 2016
US Court of Appeals for the Sixth Circuit, Case Nos. 15-1536/2346/2486

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Argument preview: Removal of an immigrant for “sexual abuse of a minor”

3-1-17:

Over the last few years, the Supreme Court has decided a number of criminal-removal cases. Next week, the justices will hear oral argument in another one, Esquivel-Quintana v. Sessions, which stems from the government’s effort to remove a lawful permanent resident for a “sex crime.”

The facts of the case sound like an episode of “Law and Order SVU.” In 2000, Juan Esquivel-Quintana’s parents lawfully brought him to the United States and settled in Sacramento, California. When he was 20 years old, Esquivel-Quintana had consensual sex with his 16-year-old girlfriend.

He later pleaded no contest to violating California Penal Code § 261.5(c), which criminalizes sex with a person “under the age of 18 years” when the age difference between the parties is more than three years.

Esquivel-Quintana was sentenced to 90 days in jail and five years’ probation. After his release from jail, he moved from California to Michigan, a state in which the conduct underlying his criminal conviction would not have been a crime. ..Continued.. by Kevin Johnson

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Court may strike law barring sex offenders from social media

see: Amy Howe "Argument analysis: Justices skeptical about social media restrictions for sex offenders" or Oral Argument Transcript and Different Formats

2-27-17 Washington DC:

WASHINGTON (AP) — The Supreme Court appears likely to strike down a North Carolina law that prohibits sex offenders from using Facebook and other social networking sites.

At least five justices suggested during argument Monday they would rule for North Carolina resident Lester Packingham Jr. He was convicted of violating a 2008 law aimed at keeping sex offenders off internet sites children might use. Packingham used Facebook to boast about beating a traffic ticket.

Justice Elena Kagan pointed out that the law is so broad it also prevents people from reading the Twitter accounts of President Donald Trump, all 50 governors and members of Congress.

The state's lawyer said the law deals with the virtual world in the same way that states keep sex offenders out of playgrounds and other places children visit. ..Source.. by AP

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ALERT: Packingham case, Oral Argument Monday 27th

See also: NC law banning registered sex offenders from social media faces challenge at Supreme Court

2-21-17 Washington DC:

Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

All briefs on the SCOTUS blog

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Packingham v. North Carolina: Oral Argument

1-27-17 National:

Oral argument is Feb 27, 2017:

See HERE for complete information.

Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

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Supreme Court Lets Stand Websites’ Liability Shield in Child Sex Trafficking Case

1-11-17 National:

The U.S. Supreme Court on Monday let stand a lower court’s decision that an online advertising site accused by three young women of facilitating child sex trafficking was protected by a federal law that has shielded website operators from liability for content posted by others.

The refusal by the justices to take up the women’s appeal in the case involving the advertising website Backpage.com marked a victory for the tech industry, which could have faced far-reaching consequences had the Supreme Court decided to limit the scope of the Communications Decency Act, passed by Congress in 1996 to protect free speech on the internet. ..Source.. by Andrew Chung

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Supreme Court won't hear Giordano appeal in child-sex case

1-9-17 Connecticut:

HARTFORD, Conn. (AP) — The U.S. Supreme Court has again refused to hear an appeal by former Waterbury Mayor Philip Giordano, who is fighting a 37-year prison sentence for sexually abusing two young girls while in office. The court's decision was released Monday. Justices previously refused to hear two earlier appeals by Giordano.

Giordano was challenging a federal appeals court decision in June to dismiss his request to set aside or correct his sentence. Giordano says the prison sentence is unconstitutional and his lawyer during his 2003 trial, Andrew Bowman, made several mistakes.

Bowman has denied that he provided ineffective counsel.

A federal jury convicted Giordano in 2003 of violating the civil rights of two girls, ages 8 and 10, by sexually abusing them in the mayor's office and other locations. ..Source.. by CtPost

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NARSOL to Supreme Court: Throw out social media bans on SO’s

12-24-16 National:

On December 22, the National Association for Rational Sexual Offense Laws (NARSOL), formerly known as Reform Sex Offender Laws (RSOL), filed a brief of Amicus Curiae before the U.S. Supreme Court in conjunction with North Carolina RSOL (NCRSOL) and the Association for the Treatment of Sexual abusers (ATSA) on behalf of the petitioner in Packingham v. North Carolina, a case concerning the rights of registered citizens to access social media websites. Packingham is set for oral argument on February 27, 2017. ..Continued.. by Robin

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U.S. Supreme Court moving ahead without a ninth Justice

12-24-16 Washington DC:

The U.S. Supreme Court on Thursday appeared to concede the practical reality that a ninth Justice will not be approved for the bench until several weeks into the new Trump administration. It did so by releasing a schedule of hearings for the February session that, once again, omits three cases that have been on hold since last January and, under normal timing, would have been heard weeks ago.

From every indication, those three cases appear to have been postponed repeatedly because the Justices have reason to think a decision in each might split the Court 4-to-4, settling nothing. Thus, those three likely will not be heard until a replacement for the late Justice Antonin Scalia has been nominated by President-elect Trump after he takes office January 20, and approved by the Senate.

The cases involve disputes over churches’ claim of an equal right to receive state government benefits, the scope of government power to take private property for public use, and a high-stakes dispute over claimed defects in Microsoft Corporation’s popular Xbox 360 game console.

The Court has only two more scheduled argument sessions in this Term — in March and April. If a Trump nominee is deeply controversial, opposition from Democrats in the Senate could prolong the process, possibly delaying further the addition of a ninth Justice. A new Justice ordinarily would not take part in decisions on cases already heard before that Justice arrived but not yet decided.

The February schedule is noteworthy for another reason: under normal circumstances, the Justices would have heard at least 10 cases during that two-week sitting, but actually will only hear seven. On only two of the five days (one normal hearing day is a legal holiday) will the Court hear two cases — the more customary number. On the other three days, only one case each day is set. ..Continued w/Schedule of Cases.. by [National Constitution Center]
Lyle Denniston

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Justice denies Michigan’s appeal to halt sex offender ruling

11-15-16 Michigan, Washington DC:

LANSING, Mich. (AP) - A U.S. Supreme Court justice on Tuesday denied Michigan’s request to halt a lower court decision that found the state unconstitutionally put new restrictions on registered sex offenders long after their convictions.

Justice Elena Kagan’s decision means law enforcement can no longer retroactively enforce 2006 and 2011 changes to the country’s fourth-largest sex offender list while the state pursues an underlying appeal in the high court, said Miriam Aukerman, an attorney with the American Civil Liberties Union of Michigan.

The 6th U.S. Circuit Court of Appeals in August said Michigan’s revisions, which included restricting sex offenders’ movements near schools and listing many on the registry for life, retroactively penalized offenders as “moral lepers” and there is “scant” evidence that the law accomplishes goals such as reducing recidivism. Kagan rejected Michigan Attorney General Bill Schuette’s emergency appeal to block the ruling. His office still plans to ask the high court to review the appellate court’s decision.

In a filing last week, Schuette warned that the 6th Circuit’s ruling would take effect early this week unless a stay was granted. He said the state should be able to appeal “without being forced to make costly, time-consuming, and complex changes to its sex-offender registry and enforcement protocols that may prove unnecessary should this Court decide to grant review.”

A Schuette spokeswoman said the office was reviewing the decision. A message seeking comment was left with the Michigan State Police, which maintains the sex offender list. It has 42,900 registrants, including more than 39,000 whose names and photos are shown on a searchable public website. About 10,700 are incarcerated.

“Police should not be enforcing parts of the law that the court said are unconstitutional,” Aukerman said. “Our registry is broken, and Michigan families deserve public safety measures that actually work - not a failed, ineffectual system that stigmatizes people who are not a threat.”

The state began prohibiting registrants from living, working or loitering within 1,000 feet of school property in 2006. Five years later, lawmakers required that offenders be divided into three tiers based on the seriousness of their crimes, rather than on individualized assessments. Many offenders must be listed on the registry for life under the changes.

The lawsuit was brought by the ACLU and the University of Michigan Clinical Law Program on behalf of six people who are on the registry for life, including some who were older teenagers who had sex with underage teens. It is unclear how many thousands of offenders will be affected by the case.

Critics argue that the registry, initially created in 1994, lists so many people that it does not identify the truly dangerous offenders. ..Source.. by DAVID EGGERT

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U.S. Supreme Court to consider reviewing North Carolina

7 PM UPDATE: US Supreme court WILL REVIEW NC case!

10-27-16 Washington DC, North Carolina:

The U.S. Supreme Court will consider whether to review several cases at its Friday conference. Among them is a North Carolina case that deals with the First Amendment rights of registered sex offenders .....

The North Carolina Supreme Court upheld a state law in November that prohibits registered sex offenders from using Facebook or other social networking sites that minors can join. In Packingham v. North Carolina, Lester Gerard Parkingham Jr., a registered sex offender in the state, was charged after Durham police found a Facebook page he created. He was convicted based on a post in which he celebrated the dismissal of a traffic ticket, declaring “God is Good!”

If the Supreme Court took the case, it would determine the constitutionality of the law that makes it a felony for all registered sex offenders to access such sites, including YouTube and nytimes.com. ..Source.. by Melissa Boughton

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U.S. Supreme Court to take up Colorado case over refunding court fees in criminal cases

9-29-16 Washington DC:

Shannon Nelson and Louis Alonzo Madden asked to be reimbursed after their convictions were reversed

The U.S. Supreme Court on Thursday agreed to hear a Colorado case in which a man and a woman were exonerated of different sexual crimes but then denied a refund of thousands of dollars in court fees and costs.

The high court will determine whether those wrongfully convicted of crimes are entitled to reimbursement of certain court costs, said Colorado attorney Robert Fishman, who wrote an amicus brief in support of the appeal.

“This case could have a very practical consequence to a lot of people,” Fishman said. Appellant Shannon Nelson was convicted in 2006 of five sexual assault charges she allegedly committed against children. Besides a prison term, she was assessed a total of $8,193 for numerous court fines and fees including $7,845 for restitution to the victims. Her convictions were reversed on appeal.

Co-appellant Louis Alonzo Madden was convicted in 2005 of attempting to patronize a prostituted child and attempted sexual assault. His court fees and costs totaled $4,413, including $128 for genetic testing for sex offenders and a $2,000 sex offender surcharge. His attempted charge of patronizing a prostitute was reversed on appeal, according to the appeal.

But when the appellants sought reimbursement for these payments on the basis of due process under the Fourteenth Amendment, their motions were denied.

A Colorado appeals court said state law required a full refund. But the Colorado Supreme Court overturned the ruling.

“We hold that due process does not require a refund of costs, fees, and restitution when a defendant’s conviction is reversed and she is subsequently acquitted,” the Colorado Supreme Court concluded.

Colorado Justice William W. Hood III dissented, arguing that “because Nelson was never validly convicted, we presume she is innocent. … Just as the state was required to release Nelson from incarceration, it should also be required to release Nelson’s money paid as costs, fees and restitution.”

Colorado allows reimbursement of court fees only if the defendant files a new civil lawsuit and proves his or her innocence, Fishman said.

“It’s an extraordinarily high burden,” he said.

In many cases the costs of hiring an attorney and proving their innocence would be more than the court fees, making such a recourse impractical, Fishman said. ..Source.. by Kirk Mitchell

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Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.

See earlier post HERE

1-24-16 Washington DC:

Just a reminder the following sex offender case is up for review in the U.S. Supreme court. Oral Argument scheduled 3-1-16.

Nichols v. United States (Click for more info).

Issue: (1) Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.

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Want to get your case to the Supreme Court? New study tells you which lawyers to hire.

1-22-2016 National:

(Reuters) – Past performance, as they tell us in mutual fund advertisements, does not guarantee future results. But a new study of 93,000 certiorari petitions filed at the U.S. Supreme Court between the court’s 2001 and 2015 terms is more evidence that a small group of Supreme Court practitioners enjoy outsized success in persuading the justices to accept cases from their clients.

The academic study, by a political science PhD candidate (who is also a lawyer) and a law student at the University of Southern California, reaches conclusions similar to those in “The Echo Chamber,” a Pulitzer-finalist 2014 report by my brilliant Reuters colleague Joan Biskupic and others. The Echo Chamber explained how 66 lawyers in private practice, most working for businesses, dominate the Supreme Court’s docket. The new paper, “Finding Certainty in Cert,” provides handy statistics on individual lawyers, kind of like baseball cards for the Supreme Court bar.

The lawyers with the highest cert grant rate in the entire 14-year span were Jeffrey Fisher of the Stanford Law School’s Supreme Court Litigation Clinic (29.1 percent); Seth Waxman of Wilmer Cutler Pickering Hale & Dorr (26.4 percent) and Andrew Pincus of Mayer Brown (25.9 percent). Close behind them were lawyers whose names will also be very familiar to Supreme Court watchers: Paul Clement of Bancroft, Theodore Olson of Gibson Dunn & Crutcher and David Frederick of Kellogg Huber Hansen Todd Evans & Figel.

The rest of the list of the most successful cert seekers, according to the paper, is University of Washington law professor Eric Schnapper, Thomas Goldstein of Goldstein & Russell, Charles Rothfeld of Mayer Brown, Carter Phillips of Sidley Austin and Christopher Landau of Kirkland & Ellis. ..Continued.. by Alison Frankel

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Hall v. North Carolina: Petition for certiorari denied

See earlier post!

12-16-15 Washington DC:

Hall v. North Carolina: Petition for certiorari denied on December 14, 2015

Issue: Whether the retroactive application of a sex offender program violates the Ex Post Facto Clause of the United States Constitution where the program imposes numerous onerous obligations and restrictions upon a registrant for life, with no opportunity to terminate registration even upon a showing that the registrant does not pose a threat to public safety.

Unfortunately this was an important case for registrants, but the time wasn't right.

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U.S. Supreme Court rejects appeal of MN priest’s sexual assault conviction

12-7-15 Minnesota:

The U.S. Supreme Court denied an appeal from a Minnesota priest who was convicted of having sex with a female parishioner.

Without comment, the justices declined to take up the case of the Rev. Christopher Wenthe. He was appealing his 2011 conviction on third-degree criminal sexual misconduct for having sexual contact with the woman when she had sought spiritual counseling from him.

The conviction said Wenthe, who formerly served at Nativity of Our Lord in St. Paul, violated the state’s clergy sex statute when he had a sexual relationship with a 21-year-old female parishioner.

The law makes it a felony for a priest to have sexual contact with anyone who is seeking or receiving spiritual advice or comfort in private.

Wenthe admitted during his trial in Ramsey County District Court to having a 15-month sexual relationship with the woman. But he maintained he wasn’t providing the woman with spiritual aid during that time.

His attorneys acknowledged that the relationship was forbidden by the church – but they said it was legal.

Wenthe’s case has been bandied about in the Minnesota court system for years: He was convicted in 2011, and the state Court of Appeals and the Minnesota Supreme Court have each considered Wenthe’s appeals twice.

The most recent ruling came in July from the Minnesota Supreme Court, which reinstated Wenthe’s conviction after the Appeals Court had thrown it out. That’s the decision Wenthe was appealing to the U.S. Supreme Court.

Wenthe had been sentenced to a year in the Ramsey County workhouse and was released early for good behavior. ..Source..

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