The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In an important decision, the U.S. Court of Appeals for the 4th Circuit on Wednesday struck down [Doe v. Cooper—opinion posted here] as unconstitutional under the First Amendment yet another "unconstitutional monstrosity" perpetrated by the North Carolina legislature in its unceasing efforts to make life as miserable as humanly possible for previously convicted (but now ostensibly "free") sex offenders, and to deprive them of any hope of re-integrating into the communities in which they live.
[Alert Conspiracy readers will recall that the Supreme Court has agreed to review a decision by the North Carolina Supreme Court that rejected a First Amendment challenge to a different section of the N.C. sex offender regulatory scheme—one that imposes criminal penalties on sex offenders who "access … commercial social networking websites" for any reason. Eugene and I have blogged extensively about this case: See here, here, here, and here].
In this case, the statute in question made it a Class H felony (punishable by "a presumptive term of imprisonment of 20 months) for sex offenders to "knowingly be" at any of the following locations:
(1) On the premises of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children's museums, child care centers, nurseries, and playgrounds.
(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) . . . that are located in malls, shopping centers, or other property open to the general public. [Or]
(3) At any place where minors gather for regularly scheduled educational, recreational, or social programs. NCGS 14-208.18(a).
The court held, first, that the provisions of subsection (3) are unconstitutionally vague; "neither an ordinary citizen nor a law enforcement officer could reasonably determine what activity was criminalized by subsection (a)(3)."
Two principal problems are evident in subsection (a)(3) which compel the conclusion it is unconstitutionally vague. In particular, a reasonable person, whether a restricted sex offender or a law enforcement officer, cannot reasonably determine (1) whether a program for minors is "regularly scheduled" or (2) what places qualify as those "where minors gather." …
The term "regular" means happening at fixed intervals. Even if a restricted sex offender or law enforcement officer knew precisely how often and where the "scheduled programs" took place, the statute provides no principled standard at all for determining whether such programs are "regularly scheduled." Notably, subsection (a)(3) provides no examples to guide restricted sex offenders or law enforcement as to how frequently the programs would need to occur in order to be "regularly scheduled." …
Subsection (a)(3)'s "where minors gather" language is also without defining standards. For example, subsection (a)(3) does not explain how many minors must gather at the place. Subsection (a)(3) also does not explain whether a place where mixed groups of minors and adults gather, such as a community college that has some high school students or a church with a congregation of adults and minors, would be considered a restricted zone under subsection (a)(3).
Additionally, the court found that subsection (a)(2) could not withstand "intermediate scrutiny" under the First Amendment:
To pass intermediate scrutiny, a statute must materially advance an important or substantial [government] interest by redressing past harms or preventing future ones. In addition, it must have the right "fit." That is, it cannot burden substantially more speech than is necessary to further the government's legitimate interests.
The burden of establishing the required fit is placed "squarely upon the government," and North Carolina failed to meet it—by a goodly distance, failing to present any evidence whatsoever that the statute advanced the state's interest in protecting minors in any way. At trial, the district court "put the State on notice that its limited evidence was inadequate to meet its burden of proof, but the State "explicitly declined to introduce any additional evidence."
[The State's] decision to not provide expert testimony or statistical reports to the Court was somewhat unexpected. … The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with an appeal to "logic and common sense." But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State's burden of proof.
[T]he State cannot rest its case on the conclusory assertion that minors would be "more exposed to harm without [this] prohibition than with it." Without empirical data or other similar credible evidence, it is not possible to tell whether subsection (a)(2)—and specifically its application to offenders with only adult victims—responds at all to the State's legitimate interest in protecting minors from sexual assault."
That might seem an unspectacular point; if the State offers no evidence at all that the statutory prohibition does anything to ameliorate the evils at which it is aimed, it cannot possibly satisfy the State's burden of demonstrating that the statute "materially advances" the State's interest. It is noteworthy, however, because so many other courts have meekly accepted the "conclusory assertion," based on "common sense," that the statute does more good than harm, and does not burden more speech than necessary to accomplish that good. [In the other North Carolina case referred to above, for example, the state presented no evidence that the ban on accessing social networking sites was, in fact, effective in any way at protecting minors—but the North Carolina Supreme Court upheld it anyway].
So kudos to Judges Motz, Traxler and Agee. This is just what the federal courts are supposed to do when constitutional rights are at stake: hold the government's feet to the fire, and demand that they demonstrate that have a damned good reason for doing what they're doing.