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
Tag Archives: first amendment
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 →
Category: Motor Vehicles | Tags: Confederate flag, dmv, first amendment, license plates, Sons of Confederate Veterans, special license plates
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 →
Category: Crimes and Elements, Uncategorized | Tags: bishop, cyber-bullying, cyberbullying, first amendment, new york, overbreadth, vagueness
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.
In last week’s news roundup, Shea mentioned Doe v. Prosecutor, Marion County, Indiana, a recent case in which the United States Court of Appeals for the Seventh Circuit struck Indiana’s law prohibiting sex offenders from using social networking websites on First Amendment grounds. North Carolina has a similar crime, a Class I felony under G.S. 14-202.5, which has resulted in an increasing number of convictions each year since its enactment in 2008: 7 in fiscal year 2009/10; 29 in 2010/11; and 47 in 2011/12. With that in mind, today’s post takes a closer look at the Indiana case.
Doe was a class action filed in federal court by an Indiana man on behalf of a class of similarly situated sex offenders. The suit challenged the constitutionality of Indiana Code § 35-42-4-12, which prohibits certain sex offenders from knowingly or intentionally using a “social networking web sites” or “instant messaging or chat room programs” that allow access or use by minors.
The federal district court judge upheld the law, finding it to be appropriately tailored to meet the state’s legitimate interest in protecting children from predators and not “substantially broader than necessary” to meet that end.
The Seventh Circuit reversed. The court applied the version of intermediate scrutiny applicable to content neutral restrictions on speech like this one: the law must be “narrowly tailored to serve a significant governmental interest” and must “leave open ample alternative channels for communication of the information.” Slip op. at 8. There was no question that the government’s interest—protecting children—was significant, but the court concluded that the law’s complete ban on social networking impacted too much communication falling outside the “targeted evil.” Slip op. at 10 (“[I]llicit communication comprises a minuscule subset of the universe of social network activity.”). The court analogized to a blanket handbill restriction, ostensibly designed to prevent litter, that was long ago overturned by the Supreme Court on First Amendment grounds. Schneider v. Town of Irvington, 308 U.S. 147 (1939). If the goal is to prevent litter, the Schneider court said, you can’t restrict the speech of the handbill distributor. Rather, you should enforce the existing littering laws on the handbill recipients who drop the paper on the ground. Likewise, you cannot prevent children from being solicited online by preventing all online communication. Rather, you should enforce existing solicitation crimes.
The state countered that it should not have to sit and “wait until a child is solicited by a sex offender on Facebook” before taking action. But the court said the state failed to present any evidence that the restriction was effective, or that the pool of offenders covered by the social media restriction (essentially all sex offenders) presented a demonstrated risk of preying on children online. Slip op. at 17 (“[T]he Indiana legislature imprecisely used the sex offender registry as a universal proxy for those likely to solicit minors.”). In the absence of such evidence, the law could not be said to be narrowly tailored, and so the court struck it.
Could North Carolina’s social networking restriction face a similar fate? Perhaps. Our law applies to all sex offenders, not just to those whose crimes were against minors. And its definition of a “commercial social networking Web site” is broad, including any site that permits minor children to join and:
- 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 messaging, chat room, or message board), and sites whose primary purpose is to facilitate commercial transactions involving goods or services. G.S. 14-202.5(c). Whatever those things mean exactly, it’s pretty clear that the North Carolina prohibition sweeps beyond prototypical social networks like Facebook and Twitter.
Doe appears to be the first case of its nature decided by a circuit court of appeals. There is no similar case law from the Fourth Circuit. Louisiana’s former social networking restriction—which was more limited than Indiana’s in that it only applied to sex offenders convicted of crimes against minors, but probably broader in the social media it restricted—was invalidated by a federal district judge last year on overbreadth and vagueness grounds. Doe v. Jindal, 853 F. Supp. 2d 596 (M.D. La. 2012). Nebraska’s similar law met a similar fate in a civil rights action, Doe v. Nebraska, 2012 WL 4923131 (D. Neb. Oct. 17, 2012), which included a sizeable attorney fee award to the plaintiff sex offenders, 2012 WL 6681855 (D. Neb. Dec. 21, 2012) ($292,564.88).
Our state appellate courts have yet to weigh in, but I know of at least one case pending before the court of appeals. A thoughtful article on North Carolina’s social networking prohibition by one of the lawyers involved in that case is available on the N.C. Bar Association webpage, here. I’m sure I’ll write about the North Carolina case when it’s decided—both here and, briefly, on Twitter (@jamie_markham).
The writing may be on the wall for internet sweepstakes businesses. On Friday, the state supreme court unanimously upheld the constitutionality of G.S. 14-306.4, the statute enacted to target such operations. The principal decision is Hest Technologies, Inc. v. State, __ N.C. __ (2012), written by Justice Hudson.
Background. The legislature has been concerned for several years with video gaming, or with businesses that offer an experience similar to video gaming. The current business model involves selling telephone or internet time to customers. Each customer receives an entry into a sweepstakes. The business owners generally analogize this to receiving a scratch-off game ticket with the purchase of a Big Mac, and, as with McDonald’s promotions, there is generally a way to obtain some free entries. The customer normally goes to a video terminal, where he or she learns whether his or her sweepstakes entry is a winner. Typically, the video terminal simulates some form of gaming or gambling in the process of revealing the result, but the outcome is predetermined. That is, the entry either is a winner or it isn’t, and the display merely reveals, rather than decides, that result. If the sweepstakes entry is a winner, the customer can claim a cash prize on site. Some customers spend hours purchasing many increments of internet or telephone time in order to receive numerous sweepstakes entries. The General Assembly viewed this as involving the same social ills as gambling, and in 2010, it enacted G.S. 14-306.4, “[e]lectronic machines and devices for sweepstakes prohibited.”
The statute makes it a crime to “operate . . . an electronic machine” to “[c]onduct a sweepstakes through the use of an entertaining display, including . . . the reveal of a prize.” Industry representatives sued to block implementation of the law, asserting, among other things, that it violated the free speech guarantee of the First Amendment. This argument was partially accepted by a superior court judge, then entirely adopted by a divided court of appeals, which viewed the statute as overbroad. Jessie’s analysis of that opinion is available here.
Ruling. The state appealed and the supreme court reversed. Initially, the court observed that “[e]lsewhere in the country, other courts facing challenges to the enforcement of similar laws have upheld them precisely because the Internet sweepstakes systems have been viewed as gambling in disguise,” citing United States v. Davis, 690 F.3d 330 (5th Cir. 2012), and Telesweeps of Butler Valley, Inc. v. Kelly, 2012 WL 4839010 (M.D. Pa. Oct. 10, 2012). Yet our court did not conclude that electronic sweepstakes are gambling as traditionally defined. Sweepstakes operators generally contend that, like McDonald’s, they are merely using sweepstakes entries to promote sales of a legitimate product, namely, telephone and internet time. On this theory, because the customers receive the telephone and internet time in exchange for their money, the money is not “bet” on the sweepstakes, which are merely a free bonus incidental to a commercial transaction. The court noted that in other states, over 99% of the telephone and internet time went unused, but because it had no similar data for North Carolina, it could not conclude that the customers’ money was in practice a bet rather than a legitimate purchase.
Instead, the court reasoned that, even if sweepstakes are not gambling, the General Assembly had “identified a threat to the public and acted to address it.” Further, because the “legislation regulates conduct and not protected speech,” it is valid under the legislature’s general police power. The court stated that “[o]perating or placing into operation an electronic machine is clearly conduct, not speech” and that “the act of running a sweepstakes is conduct rather than speech, despite the fact that sweepstakes participants must be informed whether they have won or lost.”
The court acknowledged that regulating conduct may sometimes incidentally burden speech, but concluded that any incidental impact on speech in this case was justified by the state’s “important or substantial interest” in “combatting the encouragement of vice and dissipation presented by these operations.” And the court rejected the claim that the statute is overbroad: “We see no speech or conduct, other than that which is plainly the target of the legislation, that would be chilled or otherwise burdened by this statute. . . . [P]laintiffs have provided no actual examples . . . of conduct or speech that was not intended to be covered . . . yet still arguably falls within the statute’s ambit.”
Upshot. Although this decision is a big loss for the industry, I don’t think that law enforcement officers should necessarily rush to charge sweepstakes operators with a crime.
- First, the opinion doesn’t become the court’s official mandate for 20 days. N.C. R. App. P. 32(b). Until then, I believe that the original ruling by the trial court – which generally upheld the ban on the specific types of entertaining display listed in the statute but struck it down as to entertaining displays generally – may remain in effect. I am not certain about this, however, and I encourage smart appellate lawyers to correct me if I am mistaken.
- Second, because this case involves a federal constitutional claim, the industry could ask the United States Supreme Court to review it. Statistically, the odds are against the Court accepting the case, but this issue is cropping up across the country so perhaps the Court will be interested.
- Third, industry representatives claim that they are ready to roll out a software update that will allow operators to avoid the law by using “non-entertaining reveals” rather than entertaining displays. I have long wondered exactly how far the definition of “entertaining display” extends, and in particular, what the requirement of “actual game play, or simulated game play” encompasses. See some of the hypotheticals I considered here.
As a practical matter, for the time being, it appears that most businesses remain open, and that many law enforcement agencies are waiting for guidance from the Attorney General’s office. Stay tuned.
Category: Crimes and Elements, Uncategorized | Tags: entertaining display, first amendment, hest, internet sweepstakes, sweepstakes
A caller recently asked me whether it is a crime to use gang signs. First, some background. According to one gang expert, “each gang has their own gang hand signs that they use to show allegiance to their gang or to disrespect . . . rival gang members. Many gangs have created hand signs, using their fingers and hands, to represent letters of the alphabet and other signs to represent a word or a phrase. Most members become highly proficient at this ‘art’ and can communicate with others without speaking. Displaying these gang hand signs is known as ‘flashing’ or ‘throwing’ the signs.” Signs vary from gang to gang, so there isn’t a universal dictionary of gang signs, but some examples can be viewed here and here.
The first place I looked was the Street Gang Suppression Act, G.S. 14-50.15 et seq. But I didn’t see anything there that would prohibit the use of gang signs. Then I remembered G.S. 14-12.4, which makes it “unlawful for any person to use . . . any signs, grips, [or] passwords . . . in the furtherance of . . . any purpose of violating . . . the laws of the State.” Could that statute apply to gang signs? As a matter of historical interest, G.S. 14-12.4 is part of Article 4A of Chapter 14, entitled “Prohibited Secret Societies and Activities.” That article was enacted in 1953, and was known at the time as the “anti-Ku Klux Klan statute.” A Survey of Statutory Changes in North Carolina in 1953, 31 N.C. L. Rev. 375, 401 (1953).
Turning now to statutory interpretation, I doubt that the use of gang signs automatically constitutes a violation of G.S. 14-12.4. As far as I can tell, the statute has never been cited in an appellate case, so all we have to go on is the text of the statute. And the text requires that the signs be used in furtherance of an illegal purpose. The most common use of gang signs appears to be “claiming,” or asserting membership in a gang. Essentially, the person using the sign is saying “I’m a member of gang X.” Since being a member of gang isn’t a crime in itself, “claiming” doesn’t appear to be in furtherance of an illegal purpose. Similarly, using gang signs to spell out, for example, “I love rainbows and ponies” – I bet that happens all the time – doesn’t seem like it would be in furtherance of an illegal purpose. By contrast, using gang signs to communicate “I’m going to kill you” or “I have drugs for sale” would appear to violate G.S. 14-12.4, as well as other laws.
I should add that there may be constitutional concerns with regulating the use of gang signs. I’m not an expert in that area of law and haven’t researched it extensively, but a few minutes on Westlaw turned up Martinez v. State, 323 S.W.3d 493 (Tex. Ct. Crim. App. 2010) (affirming conviction of defendant for violating injunction prohibiting defendant and others from, inter alia, using gang signs, and finding the injunction consistent with the First Amendment), and People v. Englebrecht, 106 Cal.Rptr.2d 738 (Cal. Ct. App. 4 Dist. 2001) (rejecting First Amendment challenge to anti-gang injunction).
I think the best answer to the caller’s question is no, it isn’t in itself a crime to use gang signs. If you think otherwise or know of cases in which the use of gang signs has been charged as a crime, please weigh in.
The First Amendment says, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” There are two religion clauses in the amendment, the Establishment Clause and the Free Exercise Clause. Lately I’ve been getting a lot of questions about the Free Exercise Clause in relation to G.S. 14-208.18, the law that’s preventing some sex offenders from attending church. Thinking about that issue reminded me of a question I was asked about the Establishment Clause: does it violate the Establishment Clause to require a probationer to attend Alcoholics Anonymous or Narcotics Anonymous?
Three federal circuit courts have held that coerced participation in 12-step programs like AA and NA violates the First Amendment. In Kerr v. Ferry, 95 F.3d 472 (7th Cir. 1996), the Seventh Circuit held that requiring an inmate to attend NA meetings or risk suffering adverse effects for parole eligibility violated the Establishment Clause. The Second Circuit reached a similar conclusion in Warner v. Orange County Department of Probation, 115 F.3d 1068 (2d Cir. 1997), striking a probation condition requiring attendance at AA meetings. And most recently the Ninth Circuit determined that a parolee’s First Amendment rights were violated when his parole officer forced him to attend 12-step meetings as a condition of his parole. Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007). In the latter two cases the courts found the law sufficiently clearly established to abrogate the officers’ qualified immunity. Qualified immunity shields government officials from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800 (1982). In other words, Warner and Inouye were able to go forward with lawsuits against their officers for damages for violation of their constitutional rights under 42 U.S.C. 1983. Numerous federal district courts and state supreme courts have reached the same conclusion.
It’s possible that the Fourth Circuit might rule differently. The judges here continue to apply the Lemon test (derived from Lemon v. Kurtzman, 403 U.S. 602 (1971)) in Establishment Clause cases, whereas the circuit courts listed above used a slightly different “coercion test.” Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003); Gray v. Johnson, 436 F. Supp. 2d 795, 800 n. 4 (W.D. Va. 2006) (distinguishing the tests). But given the general march toward unanimity around the country, I generally advise judges (and probation officers, who are really the ones at greatest risk of getting sued) to avoid AA or NA as a mandatory condition of probation. It’s okay to make participation optional. See Gray, 436 F. Supp. 2d at 801 (prison substance abuse program did not run afoul of the Establishment Clause when it made AA and NA participation optional). And it would be permissible to make participation in some type of recovery program mandatory as long as a secular option were available. See O’Connor v. California, 855 F. Supp. 303 (C.D. Cal. 1994) (upholding use of AA/NA as part of a drunk driving sentence when the defendant was given a choice over what program to attend). Examples of secular options include Secular Organizations for Sobriety, LifeRing, Rational Recovery, and SmartRecovery.
Finally, I’ll note that what’s not at issue in these cases is the question of whether AA is, in fact, religion-based. The litigants typically agree that it is, and the courts are unpersuaded by the idea that it’s “spiritual” and not religious. Here are the traditional twelve steps:
1. We admitted we were powerless over alcohol-that our lives had become unmanageable.
2. Came to believe that a Power greater than ourselves could restore us to sanity.
3. Made a decision to turn our will and our lives over to the care of God as we understood Him.
4. Made a searching and fearless moral inventory of ourselves.
5. Admitted to God, to ourselves, and to another human being the exact nature of our wrongs.
6. Were entirely ready to have God remove all these defects of character.
7. Humbly asked Him to remove our shortcomings.
8. Made a list of all persons we had harmed, and became willing to make amends to them all.
9. Made direct amends to such people wherever possible, except when to do so would injure them or others.
10. Continued to take personal inventory and when we were wrong promptly admitted it.
11. Sought through prayer and meditation to improve our conscious contact with God as we understood Him, praying only for knowledge of His Will for us and the power to carry that out.
12. Having had a spiritual awakening as the result of these steps, we tried to carry this message to alcoholics, and to practice these principles in all our affairs.
What do you think?
Category: Sentencing, Uncategorized | Tags: alcoholics anonymous, establishment clause, first amendment, probation
A federal judge in Utah recently invalidated the part of Utah’s sex offender registry that requires each registrant to provide his “[i]nternet identifiers and . . . addresses . . . [and] the name . . . of all websites on which the sex offender is registered.” Doe v. Shurtleff, 2008 WL 4427594 (D. Ut. Sept. 15, 2008) (quoting Utah Code Ann. § 77-27-21.5(12)(i) & (j)). This raises some questions about the constitutionality of North Carolina’s new requirement that sex offenders provide “[a]ny online identifier that the person uses or intends to use.” G.S. 14-208.7(b)(7) (eff. May 1, 2009). . .
