Yesterday the court of appeals vacated Brady Lorenzo Shackelford’s convictions for felony stalking on the basis that the prosecution of Shackelford for violating G.S. 14-277.3A impermissibly infringed upon his constitutional right to free speech. This post will review the court’s opinion in State v. Shackelford, ___ N.C. App. ___ (March 19, 2019), consider how it might affect future prosecutions, and suggest statutory amendments to stave off future constitutional challenges.
Tag Archives: first amendment
Inmates do not forfeit the right to practice their religious faith while they are incarcerated. But of course that right is not unlimited. Officers can impose certain restrictions when an inmate’s religious practices would conflict with the institution’s legitimate interests in safety, security, and good order. There is a lot of case law about those restrictions, both as a constitutional matter under the First Amendment, and under a federal statute, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1(a)(1)–(2)—which is even more protective of inmates’ rights than the Constitution. Continue reading →
Protests are breaking out all over. This weekend, protesters gathered at RDU to oppose President Trump’s travel ban. Last weekend, participants in Women’s Marches took to the streets of Washington and Raleigh. This post considers the criminal law issues that most often arise during protests. Continue reading →
Last week, the state supreme court unanimously ruled that a provision of North Carolina’s cyberbullying statute, G.S. 14-458.1, “violates the First Amendment.” The case is State v. Bishop, and the opinion is here. I previously wrote here about the court of appeals ruling upholding the statute. This post summarizes the case and discusses the new opinion. Continue reading →
The North Carolina law making it a felony for some sex offenders to go within 300 feet of certain locations intended for children is unconstitutionally overbroad under the First Amendment. Last week, a federal judge permanently enjoined all North Carolina district attorneys from enforcing the law. Continue reading →
Handling mail to and from inmates is a challenge for jail administrators. Of course they want to enable inmates to handle their legitimate business (including pending legal matters) and maintain family and community ties. On the other hand, they must be on guard against contraband or inappropriate materials coming into the jail, or inmates participating in crimes or planning an escape from within. Inmates have a constitutional right to communicate with others and to access the courts, but those rights are limited by the jail’s obligation to preserve security, good order, and discipline. This post collects some of the basic legal principles that should be incorporated into the jail’s policy on mail regulation. By state administrative regulation, every jail must have a written policy on handling inmate mail. Continue reading →
Last week the court of appeals decided another case involving the sex offender premises restriction in G.S. 14-208.18. The defendant was convicted of being within 300 feet of a church preschool. Continue reading →
Following the shooting deaths of nine black worshippers in June at a historically significant Charleston church and South Carolina’s subsequent removal of the Confederate flag from the grounds of the State House, some have called upon North Carolina officials to stop issuing specialty license plates featuring the Confederate flag. N.C. Governor Pat McCrory has said that the General Assembly must pass legislation to halt issuance of the plates. One veteran legislator was quoted in this News and Observer story as saying that he never would have voted to authorize such a special plate and never recalls seeing such legislation. A spokesperson for another legislator was quoted as saying that the Governor was empowered to end issuance of the plates. Who’s right? Continue reading →
The court of appeals just upheld North Carolina’s cyberbullying statute over a First Amendment challenge. The result is especially noteworthy because it contrasts with a ruling last year in a similar case in New York. But the opinion does leave at least one important issue open. Continue reading →
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.