RALEIGH — In a unanimous opinion, the state’s second highest court struck down as unconstitutional a state law prohibiting registered sex offenders from accessing social media sites such as Facebook.
Attorney General Roy Cooper, who lobbied for passage of the 2008 Protect Children From Sexual Predators Act, will ask the N.C. Supreme Court to overturn the opinion, according to The Associated Press. “The law is broad because technology moves fast and we don’t want predators and child pornographers to use legal loopholes,” Cooper said.
The 2008 law banned sex offenders from using social media sites on the Internet that allow minors to create profiles. Lester Gerald Packingham was convicted of taking indecent liberties with a child in 2006 and thus became a registered sex offender. To enforce the law, the Durham Police Department examined profiles on Facebook and MySpace and discovered one that Packingham had created.
At trial, a Superior Court judge rejected Packingham’s claim that the law was unconstitutional. After being convicted by a jury, Packingham was given a suspended prison sentence and placed on probation for a year. He then appealed.
“Defendant challenges N.C. Gen. Stat. § 14- 202.5 (2011) on the basis that it violates his federal and state constitutional rights to free speech, expression, association, assembly, and the press under the First and Fourteenth Amendments. Additionally, he asserts that the statute is overbroad, vague, and not narrowly tailored to achieve a legitimate government interest,” wrote Judge Rick Elmore for the N.C. Court of Appeals.
“We agree.”
The appeals court noted that Packingham’s First Amendment right to freedom of speech and association clearly were restricted by the law. Existing U.S. Supreme Court case law subjects such content-neutral restrictions to “intermediate scrutiny,” requiring them to be “narrowly tailored to achieve a significant governmental interest.”
North Carolina appellate courts have not addressed the constitutionality of the state’s ban on sex offenders using social media. Federal courts have, however, struck down similar bans in Nebraska and Indiana. The appeals court found the logic behind those decisions persuasive and cited them.
For example, the 7th U.S. Circuit Court of Appeals, in striking down Indiana’s law, held that “there is nothing dangerous about Doe’s use of social media as long as he does not improperly communicate with minors. Further, there is no disagreement that illicit communication comprises a minuscule subset of the universe of social network activity. As such, the Indiana law targets substantially more activity than the evil it seeks to redress.”
The N.C. Court of Appeals also held the state’s statute was not focused tightly enough, as it applied to all sex offenders, whether the victim was an adult or a minor.
“The application of this statute is neither conditional upon showing that the offender previously used a social networking website to target children, nor does it require a showing that the offender is a current threat to minors,” wrote Elmore.
“Accordingly, the statute is not narrowly tailored because it fails to target those offenders who ‘pose a factually based risk to children through the use or threatened use of the banned sites or services.’ In essence, it burdens more people than necessary to achieve its purported goal.”
Vagueness a concern
The appeals court also found the law too vague. Elmore noted that while most people would assume that the law applied only to websites like Facebook and MySpace, its actual sweep was much broader. The law prohibits sex offenders from accessing sites that are “commercial” (derive revenue), “social” (promote the introduction of individuals), and facilitate “networking” by creating personal profiles or communicate with others via message boards, chat, etc. The law could cover not only Facebook and MySpace but also sites such as foodnetwork.com or even Google or Amazon.
Another problem the appeals court found with the statute is that it prohibits a sex offender from “accessing” a website that he knows permits minor to become members. “Accessing” means “the act of approaching,” which is to say a sex offender would violate the law merely by clicking on a prohibited website, even if he leaves it immediately when he realizes he shouldn’t be there.
“Furthermore, by its plain language, it is assumed that every offender inherently ‘knows’ which websites are banned,” Elmore wrote. “However, given the vague definition of ‘commercial social networking website’ and its broad reach, it is fundamentally impossible to expect an offender, or any other person, to ‘know’ whether he is banned from a particular Web site prior to ‘accessing’ it.”
The appeals court also noted that the General Assembly can and has enacted laws aimed at protecting children on the Internet that do not uncut First Amendment rights. Examples include prohibiting cyber-stalking, banning the solicitation a child by computer to commit an unlawful sex act, and requiring registered sex offenders to provide the state with “[a]ny online identifier the person uses or intends to use.”
“In sum, we conclude that N.C. Gen. Stat. § 14-202.5 is not narrowly tailored, is vague, and fails to target the ‘evil’ it is intended to rectify. Instead, it arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal. The statute violates the First Amendment’s guarantee of free speech, and it is unconstitutional on its face and as applied.”
N.C. Court of Appeals rulings are binding interpretations of state law unless overruled by the N.C. Supreme Court. Even though Cooper will ask the Supreme Court to review the opinion, the justices are not required to reconsider unanimous decisions from the Court of Appeals.
The case is State v. Packingham, (12-1287).
