by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Section 14-208.18(a) of the North Carolina General Statutes makes it a felony for convicted sex offenders to “knowingly be”:
(1) On the premises of any place intended primarily for the use, care, or supervision of minors including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.
(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) . . . that are located in malls, shopping centers, or other property open to the general public.
(3) At any place where minors gather for regularly scheduled educational, recreational, or social programs.
A group of convicted sex offenders — referred to in court documents as John Doe 1, 2, 3, 4 & 5 — challenged the law in federal court as unconstitutionally vague and overbroad. The US District court for the Middle District of North Carolina found subsection(a)(1) neither vague nor overbroad. Regarding the other two subsections, however, it found that:
Subsection (a)(2) [is] facially overbroad in violation of the First Amendment because it [affects] the ability of all restricted sex offenders to engage in core First Amendment activities, such as attending a religious service or congregating in some public fora, regardless of whether a particular restricted sex offender had ever abused minors or was likely to do so.
And it found:
Strong indicia of vagueness as to subsection (a)(3) [because] language, such as “places where minors gather,” [is] unbounded in scope. And, unlike the other subsections of the statute, subsection (a)(3) [is] not informed by any specific list of examples. Further, … subsection (a)(3)’s reference to “regularly scheduled” activities [is] too vague for an ordinary person to determine its application.
Last week, the US Court of Appeals for the 4th Circuit upheld both of those findings. Writing for a unanimous three judge panel, Judge Agee held that:
While all parties agree North Carolina has a substantial interest in protecting minors from sexual crimes, it was incumbent upon the State to prove subsection (a)(2) was appropriately tailored to further that interest. Nevertheless, for reasons not apparent from the record, the State failed to produce evidence to carry that burden. Thus, irrespective of whether subsection (a)(2) could have met constitutional standards in a different evidentiary setting, the State here simply failed to meet its burden of proof.
Neither an ordinary citizen nor a law enforcement officer could reasonably determine what activity was criminalized by subsection (a)(3). As a consequence, that subsection does not meet the standards of due process because it is unconstitutionally vague. Accordingly, the district court did not err in granting summary judgment as to subsection (a)(3)