SCOTUS Symposium: Packingham and Fact-Checking the Supreme Court

Last week’s decision in Packingham v. North Carolina is getting a lot of attention in part because of this fact checker column in the Washington Post.  Packingham involved a challenge to a North Carolina law that severely restricted the ability of registered sex offenders to access various websites, including Facebook, LinkedIn, and Twitter.  All eight participating Justices agreed that the law violated the First Amendment because it was unable to satisfy intermediate scrutiny.  Although the Court acknowledged that protecting children from sex offenders was a legitimate government interest, the law burdened more speech than was necessary to further that legitimate interest.  

Justice Alito wrote separately to criticize the majority for including “undisciplined dicta” in its opinion.  Justice Alito’s concurrence included the following paragraph:

Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” McKune, supra, at 33 (plurality opinion); see United States v. Kebodeaux, 570 U. S. ___, ___–___ (2013) (slip op., at 8–9).

The paragraph appeared in the portion of his opinion that concluded the North Carolina law “easily satisfies” the legitimate government interest prong.  It was this paragraph that the Washington Post decided to fact check.  Interestingly, the Post did so after first noting that it does not normally fact check the Supreme Court, but then explaining: “the topic of sex offender recidivism is worth clarifying because it is often misconstrued, so we found Alito’s claim newsworthy. And this specific claim is an assertion of fact, rather than the justices’ actual opinion.”

Oddly, the fact check does not show that this factual claim by Alito is false.  Rather the article claims that it is misleading.  Specifically, the article states:

The reference to sex offender rearrest trends in Alito’s opinion is quite misleading. It measures the likelihood of sex offenders to be arrested for sex crimes after release from prison, and compares it to the likelihood of non-sex offenders to be arrested for sex crimes after release. This makes it seem like recidivism among sex offenders to be [sic] a uniquely bad problem, but it is an apples-to-oranges comparison.

As Ed Whelan notes in the National Review, the Washington Post article is quite strange because it refutes a factual claim that Alito didn’t make. The article notes that sex offenders are arrested at the lowest rate for the same crime as compared to people convicted of other crimes.  And it notes that of all previously incarcerated offenders arrested for sex crimes, only 13% were previous sex offenders. But these facts do not refute the narrow factual claims Alito makes in his concurrence.

The real problem that the Post has identified (though expressed poorly) is that Alito’s opinion could be read to endorse an oft-repeated claim that sex offenders pose a unique recidivism risk, making sex offender registries and a host of other post-conviction restrictions justified.  Indeed, in a 2002 opinion, the Supreme Court stated that “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” and referred to the recidivism rate of sex offenders as “frightening and high.”  The Washington Post takes pains to debunk this factual claim, even though it was not included in the Packingham opinion.

I partially share Ed Whelan’s criticism of the Washington Post fact check.  Justice Alito’s statement about the relative re-arrest rates for different offenders is factually accurate.  And although the Washington Post tells us that there are other facts that appear better calculated to assessing how dangerous sex offenders are, that does not make Alito’s statement inaccurate.

Where Whelan and I part ways is that I nonetheless think this paragraph from Justice Alito’s opinion is misleading, if not false.  The problem with this paragraph is not, as the Washington Post claims, that it cherry picks particular statistics and leaves out other statistics.  It is instead the topic sentence of the paragraph.  The paragraph begins with the claim “Repeat sex offenders pose an especially grave risk to children.” But the facts that are contained in the rest of the paragraph do not support this claim, and there are other statistics indicating that this factual claim is false.

The topic sentence is quite clear—it claims that repeat sex offenders pose a particularly serious risk to children.  But the only fact offered in support of this claim is that previously convicted sex offenders are more likely to be arrested for another sex offense than are individuals who had previously been convicted of a non-sex offense.  But how often prior sex offenders are arrested for subsequent sex offenses tells us next to nothing about the risk that repeat sex offenders pose to children. The data Alito cites on re-arrests tell us nothing about the age of the victims. Nor does information about re-arrests tell us how likely it is that a person who victimizes children was previously convicted of a sex crime. 

But there is data that Alito didn’t cite on both of these questions, and they do not support Justice Alito’s claim. When we look at recidivism data broken down by age of the victim, we do not see a large group of people repeatedly targeting children.  This federal study, for example, shows that although more than 50% of individuals convicted of a sex crime against children had a prior conviction, only 7.3% had a prior conviction for a sex offense against a child. (Look at Table 6.)   This is consistent with recent reporting from Joshua Vaughn of the Carlisle Sentinel.  He reports that in some Pennsylvania counties, 95-100% of all sex crime arrests are for people who are not on the registry, even though police devote as much as 60% of their resources to enforcing registry laws.  These figures flatly contradict Justice Alito’s claim that “Repeat sex offenders pose an especially grave risk to children.”  The serious risk to children appears to be coming from groups other than repeat sex offenders.

Of course, one could argue that Alito limited his claim of “grave risk” to repeat sex offenders.  If we read his claim excluding those previously convicted sex offenders who do not reoffend, then Justice Alito has limited his factual claim in a way that ensures it is accurate—those who have or will reoffend by definition pose a risk of reoffending.  But that seems like a bizarre way to read Justice Alito’s opinion.  The North Carolina law regulated the behavior of all previously convicted sex offenders, not simply those who have or will reoffend.  And if we were supposed to read Justice Alito’s opinion in this tautological way, then I would expect to see this mentioned in the portion of his opinion that discusses whether the law burdens substantially more speech than is necessary” to achieve the government interest.  But that section of his opinion is devoted entirely to the types of websites that the statute covers.

In sum, I think that it is fair to say that Justice Alito makes a misleading, if not false, factual claim in his Packingham concurrence.  But it is not the claim that the Washington Post identifies.