First Amendment right to Facebook?

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The North Carolina Legislature prides itself on being one of the toughest states in the nation with respect to punishing child sex offenses.  North Carolina law pertaining to sexual offenses carries strict penalties including a rigorous registry system, mandatory minimum sentences, satellite based monitoring, civil commitment, and residency restrictions.  In December of 2008, as a part of the Protect Children from Sexual Predators Act, North Carolina added to this list a ban on the use of commercial social networking sites by registered sex offenders.  The statute, N.C.G.S. §14-202.5, declares it “unlawful for a sex offender who is registered in accordance with Article 27A of Chapter 14 of the General Statutes to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.”  Violation of N.C.G.S. §14-202.5 is a Class I felony.

Lester Packingham is a citizen of Durham, North Carolina and is a registered sex offender prosecuted under N.C.G.S. §14-202.5.  His case has recently been granted certiorari by the Supreme Court of the United States for his First Amendment challenge to the law. In 2002, Packingham pled guilty to taking indecent liberties with a thirteen year old girl when he was twenty-one.  As a result of this conviction, Packingham was added to the North Carolina Sex Offender Registry under N.C.G.S. §14-208, which requires that persons convicted on or after January 1, 1996 of sexually violent offenses or certain offenses against minors, to register as a sex offender.  This registration placed Packingham in the class of people banned from the use of commercial social networking web sites under N.C.G.S. §14-202.5.

Deciding that the statute violated these rights, the court declared §14-202.5 unconstitutional.

In an effort to enforce §14-202.5, the Durham Police Department monitored web sites including Facebook.com and Myspace.com, which fall under the statute’s prohibition, to check for use by registered sex offenders.  Mr. Packingham, though operating under a false name, was found to be maintaining a Facebook account in violation of the statute.  A jury convicted Mr. Packingham under §14-202.5 in May of 2012 after an unsuccessful constitutional challenge to the law, and he was placed on twelve months of supervised probation with a suspended sentence of six to eight months in prison.  Mr. Packingham then appealed his conviction to the Court of Appeals of North Carolina.  The issue on appeal was whether N.C.G.S. §14-202.5 violates the First Amendment rights of Mr. Packingham and those similarly situated.  The Court of Appeals of North Carolina, in a unanimous decision written by Judge Elmore, declared that the statute “plainly involves defendant’s First Amendment rights […] because it bans the freedom of speech and association via social media.”  Deciding that the statute violated these rights, the court declared §14-202.5 unconstitutional.

Although the First Amendment is mentioned frequently in news outlets and other media publications, proving that First Amendment rights have been violated can be a daunting task.  The first step in analyzing a First Amendment Speech issue is to determine if the regulation is content-based or content-neutral, which will determine the applicable standard of review.  The Court of Appeals held that the statute was content-neutral “because it restricts access to commercial social networking Web sites without any reference to the content or type of speech disseminated or posted thereon.”  As a content-neutral time, place, and manner regulation, the statute is subject to intermediate scrutiny, which requires the government to show that the statute is “narrowly tailored to achieve a significant governmental interest” and that it “leave[s] open ample alternative channels for communication of information.”

The Court of Appeals additionally noted that the statute was fatally overbroad…

Although the Court of Appeals found that the government in this case had a significant interest in “protecting minors from predatory behavior by sex offenders on the internet,” the court held that the statute was not narrowly-tailored in that it “applies equally to every registered sex offender in the state, regardless of whether the offender committed any sexual offense involving a minor.”  The Court of Appeals additionally noted that the statute was fatally overbroad as it “arbitrarily prohibits a broad scope of internet activity” and that the statute’s definition of banned sites is not clear enough to put offenders on notice of what is prohibited.  After the Court of Appeals vacated Mr. Packingham’s sentence, the case was taken up by the Supreme Court of North Carolina on discretionary review pursuant to N.C.G.S. § 7A-31.

Presented with the same issue, the Supreme Court of North Carolina analyzed the statute as a content-neutral time, place, and manner restriction on conduct subject to intermediate scrutiny.  The Supreme Court of North Carolina stood in agreement with the Court of Appeals in that it recognized a substantial state interest in protecting minors from registered sex offenders on the internet, however, it concluded that the statute is sufficiently narrowly tailored while providing ample alternative channels for communication of information.

… the Supreme Court of North Carolina held in the contrary, that the statute leaves open “ample alternative channels for communication.

The Supreme court’s decision that the statute is sufficiently narrowly tailored is premised on the fact that the statute, “instead of imposing a blanket prohibition against internet use, the statute establishes four specific criteria that must be met in order for a commercial social networking Web site to be prohibited.”  The court noted that by utilizing the specific criteria outlined in the statute,  the General Assembly effectively tailored the law to target the precise evil that it was intended to prevent: persons registered as sex offenders in North Carolina accessing web sites that allow them to gather information about minors.

In response to the Court of Appeals’ decision that the statute was overbroad, the Supreme Court of North Carolina held in the contrary, that the statute leaves open “ample alternative channels for communication.”  The court justified this decision by noting that the internet “offers numerous alternatives that provide the same or similar services that defendant could access without violating N.C.G.S. § 14-202.5” listing as examples the Paula Deen Network, Shutterfly, and WRAL.  The Supreme Court of North Carolina additionally addressed the defendant and the Appellate Court’s determinations that that statute was vague by claiming “vagueness cannot be raised by a defendant whose conduct falls squarely within the scope of the statute.”  In a four-two-one opinion delivered by Justice Edmunds (Hudson and Beasly dissenting; Ervin did not participate), the Supreme Court of North Carolina ultimately reversed the decision of the North Carolina Court of Appeals, declaring the statute constitutional on its face and as applied.

The Supreme Court of the United States granted certiorari to hear the case of Packingham v. State of North Carolina to determine whether or not the restrictions are constitutional. 

The American Bar Association Journal reported on October 31, 2016, that three days prior, the Supreme Court of the United States granted certiorari to hear the case of Packingham v. State of North Carolina to determine whether or not the restrictions are constitutional.  In the brief for the respondent, the state of North Carolina articulated arguments in line with the holding of the North Carolina Supreme Court.  North Carolina defended itself against the claim that the statute is not narrowly tailored by citing to Ward v. Rock Against Racism in which the United States Supreme Court held that “so long as the means chosen are not substantially broader than necessary to achieve the government’s interest…the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech restrictive alternative.”

In the petitioner’s brief, counsel for Mr. Packingham relied not only on the arguments concerning overbreadth, vagueness, and narrow tailoring, but also argued for the application of heightened scrutiny and the need for a showing of “wrongful intent or actual harm” before conduct can be punished under the statute.  Petitioner’s brief also cited to multiple cases, including Doe v. Nebraska and Doe v. Jindal, in which courts have invalidated similar statutes because they “burden substantially more speech than is necessary to further the government’s legitimate interests” and “potentially restrict that targeted offenders from communicating with hundreds of millions…of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors.”

Considering the arguments of both parties and the lower courts, it seems the decision of the Supreme Court of the United States will likely hinge on whether or not the statute is narrowly tailored enough to withstand intermediate, or even strict, scrutiny, and whether it is clear enough to put potential offenders on notice of what conduct is actually prohibited.  As the case presents a challenge to the constitutionality of a statute, the Supreme Court of the United States will review the decision of the state Supreme Court de novo.  The Washington Times reported that oral arguments are likely to occur early in 2017.