North Carolina’s ban on accessing commercial social networking sites by sex offenders is unconstitutional on its face, the court of appeals held this morning in State v. Packingham.
Under G.S. 14-202.5, it is (was?) a Class I felony for any registered sex offender to access a commercial social networking web site where the offender knows that the site permits children to join. The law defines commercial social networking Web site broadly to include any site that:
- Derives revenue, through membership fees, advertising, or other sources;
- Facilitates social introduction between two or more persons for friendship, meetings, or information exchanges;
- Allows users to create Web pages or personal profiles that may be accessed by others; and
- Provides mechanisms for users to communicate with one another. G.S. 14-202.5(b).
The definition excludes sites that provide only one discrete service (photo-sharing, email, instant message, or chat), and sites whose primary purpose is to facilitate commercial transactions involving goods or services. G.S. 14-202.5(c).
Registrant Lester Packingham was found to be using Facebook under a pseudonym and charged with a violation of G.S. 14-202.5. A jury found him guilty. On appeal, he argued that the statute violated his First and Fourteenth Amendment rights to free speech, expression, association, assembly, and press. He also argued that the law was impermissibly overbroad and vague in violation of due process. The court of appeals agreed on both fronts.
Applying intermediate scrutiny—the proper level of review for a content-neutral restriction on expressive activity—the court considered whether the law was narrowly tailored to achieve a significant government interest. The government’s interest in protecting children was undisputed, but the court concluded that the law was not sufficiently narrowly tailored to achieve that interest. The law applied to all registrants, regardless of whether their underlying crime involved children at all, and without any showing that the offender is a current threat to minors. “In essence,” the court concluded, “it burdens more people than necessary to achieve its purported goal.” Slip op. at 15. In support of its holding, the court cited a handful of federal cases—each discussed in this prior blog post—in which courts have struck even narrower restrictions in other states.
As to overbreadth and vagueness, the court of appeals agreed with the defendant’s argument that G.S. 14-202.5 did not “give people of ordinary intelligence fair notice of what conduct is prohibited.” Slip op. at 16. The court noted that the law’s broad definitions could sweep beyond mainstream sites like Facebook and Myspace (is that still mainstream?) to include sites such as foodnetwork.com, which apparently falls within the law’s prohibition by virtue of its user profile and messaging features. The court also indicated that sites like Amazon.com might be off limits, although it seems to me that Amazon would fall within the law’s exception for sites whose main purpose is to facilitate commercial transactions. Nevertheless, the point is that the law excludes sites a person of ordinary intelligence wouldn’t expect—and which probably don’t present a risk to children in any event.
The court concluded by noting that North Carolina has other criminal laws that protect children on the Internet without impinging on First Amendment rights: solicitation by computer under G.S. 14-202.3; cyberstalking under G.S. 14-196.3, and requiring sex offender to provide online identifiers as part of their registration with the sheriff under G.S. 14-208.7(b)(7). In fact, a failure to inform the sheriff of an online identifier is a Class F felony under G.S. 14-208.11(a)(10)—a more serious crime than the Class I crime deemed unconstitutional in Packingham, and one that may apply to Mr. Packingham depending on the particular facts of his case.
Packingham is the second recent case in which the court of appeals has deemed a restriction on sex offenders unconstitutional. The other is State v. Daniels, __ N.C. App. __, 741 S.E.2d 354 (2012), discussed here, in which the court found the restriction barring certain registrants from “any place where minors gather for regularly scheduled educational, recreational, or social programs” unconstitutional as applied to the particular defendant in question. In Packingham, the court held G.S. 14-202.5 unconstitutional on its face, meaning there is no set of facts to which it could validly apply.