Social Networking Prohibition for Sex Offenders Facially Unconstitutional

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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.

14 comments on “Social Networking Prohibition for Sex Offenders Facially Unconstitutional

  1. So can sex offenders sign up for Facebook now or is there still a wait?

  2. Facebook policy still prohibits convicted sex offenders from using the site.
    https://www.facebook.com/help/210081519032737?q=sex%20offender&sid=0tBX343rnq5fkwJHN

    • I never knew Facebook had that ban in place – thanks for the information.

      I do wonder if a privately enforced ban like this is also unconstitutional though. After all a ban like that would be considered illegal if it applied to gender or race.

  3. Jamie,

    My comment deals with what you touched on above in the blog. If they have a FB account, they had to create online identifier (user name and password) to create the account, and the large majority of the time they did not register that identifier with the sheriff. Do you see any problem with dismissing the charges for having the FB accounts and pursuing them for the unregistered online identifier?

  4. Jamie-What about the prohibition as a condition of probation or post-trial release? The Court appears to be primarily offended by the legislature making it a separate crime.

  5. David Spence: Our courts have upheld the constitutionality of a condition prohibiting a sex offender probationer from residing with his own children. State v. Strickland, 169 N.C. App. 193. Provided a social networking condition were articulated clearly enough, I think it would probably survive a constitutional challenge. This prior post, http://nccriminallaw.sog.unc.edu/?p=4084, considers the question in more detail.

  6. First and foremost, I enjoy reading your articles. I know that Facebook bans RSO’s from using the site, however, as far as NC law applies, can RSO’s legally access Social Networking Websites as of today? Or do they have to wait and see if the ruling gets appealed by the AG? Thanks.

  7. The State applied for a temporary stay and petitioned for a writ of supersedeas in Packingham. The supreme court allowed the stay on August 26. http://appellate.nccourts.org/dockets.php?court=1&docket=1-2013-0366-001&pdf=1&a=0&dev=1. (Thanks to attorney Christopher Tyner for bringing this to my attention.)

  8. So how long is the stay good for? As a registered sex offender who has never touched a child, this ban from social media really inhibited my ability to stay current with my family and friends. While I understand the need for discretion, I find it overly inhibiting to keep non-violent sex offenders off the site. However I understand that parents need to keep their children safe, which is why I would even agree to have an identifier on my (future) facebook profile if required. Regardless I look forward to being able to use social media once again.

  9. I can see how the sex offenders who have never touched a child could be angry but they should have to jump through hoops to have any account on the internet. They are registered as sex offenders for a reason.

    • Zeke: regardless of your emotions, past offenses do not predict future crimes and to punish someone for an act that they have not and may never commit is appalling. During probation, perhaps things are different. After a sentence ends, punishment should also end. There is no excuse in a free society for restricting the rights of a human being once they’ve served their criminal sentence out.

  10. Anonymous, I couldn’t have said it best. It’s hard enough having to live with the shame of a past mistake I made, and it’s even harder having people judge before they even get to know the person that I am today. I just wish people would stop being so judgmental and give us the benefit of the doubt and give us a chance to show that we regret the mistake we made and that we are just wanting to be forgiven and accepted for who we are today and that we are willing to work for the better. If a SO was to recommit a sex offense, then, in my opinion, there is some mental instability and a mental evaluation and psychological help is obviously needed. These days, if someone commits a sex offense, it’s “Lock ’em up and throw away the key!!!”. Makes me wonder what has happened to the human trait of wanting to help their fellow human being get better and be productive. How can one get over their mental instabilities when locked up in a cage like a feral animal. We are all humans and it is our duty to one another and God to help the sick, no matter the cost. We are only as strong as our weakest link. Is that not a saying in the Military?

  11. As a convicted sex offender who never used social media, and who had a family victim, I do not understand the jump made by banning me from social media. At worst case, an offender should be allowed to identify himself as a sex offender on social media. After all, I just want to contact people who already know!!!This would leave the burden on parents and children to check profiles, but is that too much to ask. As I do not like the Scarlet letter, the choice is better than having to live in a 20th century world. Social media has become a basic necessity of lives, and being on the registry does not seem to be enough? People can already check names against the registry. If I have to put my past on social media, so be it. But, banning me from even food sharing sites and buying sites is rediculous, especially if my tag tells all. I do not use anything that is even a grey area, and my life suffers accordingly, but I understand the purpose of this law. Instead of being lazy with “blanket” coverage, there’s should be common sense, and at least a highly restricted option for sex offenders to be a part of 2016 society. I thought that giving up 13 years of my life, most of my family, my job, and my house would constitute enough punishment. Despite the years spent in sex offender programs, the therapy I am in now, my registration, and probation, people think that it is not enough because I am placed in the same category as someone who used social media to troll for anonymous victims, or even some one who would accost a stranger.If I had to tattoo my mistake on my head, I would take that option over banning me from things that anyone can check in themselves for protection. Social media has evolved enough to monitor sensibly for predators. Sadly, most crimes will be committed by people who never offended before. Why can’t we concentrate on initial prevention instead of meaningless witch hunts that only pacify people into a false sense of security. If I was identified on social media as a sex offender, who is the bigger threat….me or the man who was never convicted? Perhaps people like me could even help with prevention. Isn’t that a crazy idea?

  12. […] violates the First Amendment.  If you’re not up to speed on Packingham, check out Jamie’s 2013 post discussing the North Carolina Court of Appeals decision holding G.S. 14-202.5 facially […]

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