Below is an article by Melissa Hamilton, which is directed at the problems with some of the science cited in briefs to the Supreme Court in Packingham v. North Carolina in support of bans on the use of social networking sites for registered sex offenders. It gives a good critical analysis of some of these studies and has a helpful section on debunking the results of polygraph testing.
BRIEFING THE SUPREME COURT: PROMOTING SCIENCE OR MYTH?
by: Melissa Hamilton
The Supreme Court will soon decide if North Carolina’s ban on the use of social networking websites by registered sex offenders is constitutional.1 The case is Packingham v. North Carolina and oral arguments were heard in
February 2017. The principal legal issue in the case is whether the ban violates the First Amendment’s right to freedom of speech.
Yet another issue has arisen in the briefing and oral arguments before the Supreme Court. The litigants and certain amici curiae engage in some debate about whether such a restriction is necessary in the first place. That is, various parties argue about whether the ban serves to protect the public from what North Carolina and the representatives of thirteen other states in a collective amicus brief contend are high risk sex offenders who commonly use the
internet to locate children for purposes of sexual exploitation. In opposition,the individual petitioner Packingham’s submissions and the amicus brief by a group of sex offender treatment professionals refute such allegations.3
This debate is certainly important because it goes to the heart of the foundational basis of North Carolina’s justification for the ban. The Supreme Court has previously approved civil restrictions on sex offenders, such as
public registries and residency restrictions, based on its belief that their recidivism risk is “frightening and high.” Yet some experts point out that the scientific evidence is to the contrary.5 News reporters have noticed, running stories about the Packingham case and specifically challenging the Supreme Court’s previous rulings upholding sex offender restrictions.6 The headline in the New York Times reads “Did the Supreme Court Base a Ruling on a
Myth?” Similarly, Slate Magazine’s coverage leads with “The Supreme Court’s Sex-Offender Jurisprudence is Based on a Lie.”
The arguments concerning the government’s purported need for a social networking ban refer to various statistical studies of sex offenders. This Essay contends that the case materials in Packingham v. North Carolina in support of the ban contain significant misunderstandings in conceptualizing and conveying the scientific evidence about the dangerousness of sex offenders. Such a conclusion is particularly distressing as these errors are contained in briefs and oral arguments before the Supreme Court of the United States in an important constitutional case. If the justices rely upon the version of the scientific evidence offered by the states in deciding Packingham, they will continue to be misled about the risks involved. This Essay is meant to address why the studies that North Carolina and its amici offer are more akin to junk science than valid representations of the empirical evidence as applicable to the group of sex offenders to whom the ban is targeted.
This Essay proceeds as follows. It first summarizes the background to Packingham. The next three Sections review the main arguments that North Carolina and the thirteen states as friends of the court make concerning the risk of sex offenders using social media to exploit minors. Alongside are analyses of the validity of the scientific evidence they cite.