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SCOTUS Will Consider Challenge to Ban on Social Media Use by Sex Offenders

A man arrested for using Facebook argues that North Carolina's law violates the First Amendment.

N.C. Department of Public SafetyN.C. Department of Public SafetyAfter beating a traffic ticket in 2010, Lester Packingham exulted on Facebook: "Man God is Good! How about I got so much favor they dismiss the ticket before court even started. No fine, No court costs, no nothing spent….Praise be to GOD, WOW! Thanks JESUS!" That burst of exuberance led to Packingham's arrest and prosecution, because as a registered sex offender in North Carolina he was prohibited from using Facebook or any other "commercial social networking Web site." Last Friday the U.S. Supreme Court agreed to hear his First Amendment challenge to that rule.

In 2002, when he was 21, Packingham pleaded guilty to taking indecent liberties with a minor. A first-time offender, he received a sentence of 10 to 12 months, after which he served two years of probation. He was required to register as a sex offender for 10 years. Six years after Packingham's conviction, the North Carolina legislature enacted a law that made it a Class I felony, punishable by up to a year in jail, for a registered sex offender to "access" any commercial website open to minors that facilitates social introductions, allows users to create web pages or profiles that include personal information, and enables users to communicate with each other. That restriction applies to all sex offenders listed in North Carolina's registry, whether or not their crimes involved children or the internet and no matter how long ago they occurred. The law clearly covers social media platforms such as Facebook and Twitter, and it arguably applies even to ubiquitous services such as Google and Amazon, which are not primarily social networking sites but seem to meet the statutory definition.

A unanimous state appeals court agreed with Packingham that the law he broke violated his First Amendment rights. Applying intermediate scrutiny, the court concluded that the law "is not narrowly tailored, is vague, and fails to target the 'evil' it is intended to rectify" because it "arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal." The North Carolina Supreme Court reversed that ruling in a 4-to-2 decision last year, finding that the law is mainly aimed at conduct, affecting speech only incidentally, and is narrowly tailored to achieve the state's goal of preventing sex offenders from "prowling on social media and gathering information about potential child targets."

The court also concluded that the law leaves open "ample alternative channels for communication," since it exempts sites that bar minors, that are designed mainly to facilitate commercial transactions among users, or that provide a single discrete service such as email, photo sharing, or instant messaging. While Packingham could not legally use Facebook or Twitter, the majority noted, he was still free to swap recipes on the Paula Deen Network, post photos on Shutterfly, look for a job at Glassdoor.com, or get news updates from the website of WRAL, the NBC station in Raleigh, since all of these sites officially limit registration to users 18 or older.

UCLA law professor Eugene Volokh, who worked on a friend-of-the-court brief urging the U.S. Supreme Court to take up the case, questions the state court's understanding of "ample alternative channels," a requirement for applying intermediate rather than strict scrutiny to limits on speech:

How can a total ban on some people's use of Facebook, Twitter and the like be said to leave open "ample alternative channels"? [According to the North Carolina Supreme Court,] the people restricted by the law can't read or post to Facebook, Twitter and so on. But no problem—the sex offender still has ample alternative channels, such as the Paula Deen Network, WRAL.com, Glassdoor.com and Shutterfly. The state has argued that the North Carolina Supreme Court focused on the Paula Deen Network because the defendant argued, in part, that he couldn't use certain other food-related sites. But the defendant also argued that he couldn't use Facebook and the other giants, and the court didn't—and couldn't—explain how the Paula Deen Network and the other sites constitute an ample alternative to those massive social networks.

In her opinion dissenting from the North Carolina Supreme Court's ruling, Justice Robin Hudson argues that the law barring registered sex offenders from social networking sites primarily targets speech, not conduct, and that it is arguably not content-neutral, meaning that strict scrutiny should apply. In any case, she says, the fit between the law's restrictions and its goal is so loose that it cannot survive even intermediate scrutiny.

Although "the State's interest here is in protecting minors from registered sex offenders using the Internet," Hudson notes, "this statute applies to all registered offenders," as opposed to "those whose offenses harmed a minor or in some way involved a computer or the Internet," or "those who have been shown to be particularly violent, dangerous, or likely to reoffend." She also argues that the law "sweeps far too broadly regarding the activity it prohibits." The definition of a social networking site "clearly includes sites that are normally thought of as 'social networking' sites, like Facebook, Google+, LinkedIn, Instagram, Reddit, and MySpace." But it "also likely includes sites like Foodnetwork.com, and even news sites like the websites for The New York Times and North Carolina's own News & Observer." The law "may even bar all registered offenders from visiting the sites of Internet giants like Amazon and Google."

Packingham v. North Carolina provides an opportunity for the Supreme Court to address important First Amendment issues such as the meaning of "ample alternative channels" and the distinction between conduct and speech regulation. It also gives the Court a chance to reconsider its reflexive deference to state legislators whenever they purport to be protecting children from predatory perverts. Under North Carolina's law, someone who has never shown any propensity to molest children or stalk them on the internet, such as a teenager who exchanges nude photos with his girlfriend, is prohibited from visiting many highly popular and useful websites. His punishment for using Facebook or Twitter might even be more severe than the penalty for his original offense. That is what passes for common sense in laws dealing with sex offenders.

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  • Brian||

    "Now, you know what people are going to say. I can hear it all ready: freedom of speech, yada yada yada, blah, blah blah..."

  • Fist of Etiquette||

    If they take away the state's ability to ban sex offenders from the twittersphere, all that's left will be to re-issue this guy his traffic fines.

  • Jerryskids||

    Damn, I didn't even know this "ample alternative channels" bullshit was even a thing. How the hell can you justify infringing on somebody's free speech rights on the grounds that they have plenty of other words they can use, books they can read, pictures they can look at? Can we ban Mormons on the grounds that there are plenty of other religions they can practice?

  • Mainer2||

    isn't that also part of the justification for the TSA's violation of the 4th ? You have alternate ways to travel, you don't need to travel on an airplane.

  • loveconstitution1789||

    You can't justify it, which is why many/most of these courts need a house cleaning of impeachment or voting out if they stop strictly following the Constitution.

    It wastes everyone's time, money and labor to keep arguing the same restrictions on government just in different form. Right now its sex offenders, it used to be black people's right and then criminal's protected rights in the 1970s.

    Every time one of these judges sides against the Constitution, fine (I mean tax them) $50,000. Second offense impeachment.

    There is nothing in the Constitution that allows government to deny people who are not in custody, freedom of movement and all other freedoms everyone else enjoys. Sex crimes are used a pretext to strip rights since nobody wants to stand up for sex offenders.

  • Jay Dubya||

    who decides when a judge "sides against the Constitution"? the executive branch? direct ballot vote? the courts are awful mainly because they already oander to voters/legislators/bureacrats too much. your idea would eliminate judicial impartiality.

  • Will C.||

    You can't justify that line of reasoning. The bottom line is even judges have the attitude of, "Yeah, we know you're rights are being violated and that this is illegal, but since you're a sex offender, maybe even a disgusting baby raper, F*** YOU!!! and we'll keep on violating your rights. Know why?? NOBODY CARES IF A BABY RAPER'S RIGHTS ARE VIOLATED!!"

  • OldMexican Blankety Blank||

    A man arrested for using Facebook argues that North Carolina's law violates the First Amendment.


    "Well, yes, it does, but you're a sex offender so fuck you, that's why.

  • Ken Shultz||

    "Six years after Packingham's conviction, the North Carolina legislature enacted a law that made it a Class I felony, punishable by up to a year in jail, for a registered sex offender to "access" any commercial website open to minors that facilitates social introductions, allows users to create web pages or profiles that include personal information, and enables users to communicate with each other.

    I'm on board with protesting the First Amendment violation, but what about ex post facto laws?

    "No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."

    ----Article 1, Section 10, US Constitution

    How can they decide to add to someone's sentence six years after he was sentenced?

  • Jerryskids||

    How can they decide to add to someone's sentence six years after he was sentenced?

    Because, as the courts have repeatedly ruled, these laws are regulatory in nature and not punitive. Being put on a list of people not allowed to do certain things is not a punishment, it's just a way for the state to keep track of certain people, no different than the voter registration rolls or the DMV's driver's license database. (The initiation ritual for all new judges includes a part where you gotta be able to say stuff like this while maintaining a solemn, serious look on your face. If you start giggling when you say it you get kicked out of the club.)

  • Ken Shultz||

    So it's FU, that's why?

  • WTF||

    So, if you violate the "regulation" you are not punished? Because otherwise it most certainly is punitive.

  • Ken Shultz||

    I think the point of contention here is just that they can't punish regulate this guy without violating his First Amendment rights.

    If defying the regulations meant doing something that wasn't an express right, they might not have a leg to stand on.

    I bet the court treats this just like a ban on convicted felons possessing a firearm. If they can regulate away your Second Amendment rights, what's so special about the First?

  • ||

    "I bet the court treats this just like a ban on convicted felons possessing a firearm. If they can regulate away your Second Amendment rights, what's so special about the First?"

    Exactly this. And the number of rights and reasons to strip them from people will keep expanding, because it's a one way street. Once something like this is in place, it's never being removed, only added to.

  • Will C.||

    "I bet the court treats this just like a ban on convicted felons possessing a firearm. If they can regulate away your Second Amendment rights, what's so special about the First?"

    That statement is scary and true. Once the gov't has a precedent for stripping rights under guise of "regulation", are any of our rights really safe???

  • loveconstitution1789||

    They certainly don't see it as punitive because that is not the "intent". These politicians think the Constitution gives them the power to regulate groups of people not in criminal custody.

  • Hank Phillips||

    Yup. You wouldn't want some hippie caught with a handful of hemp seeds in the Summer of Love to be able to exercise Second Amendment rights 48 years later, would you?

  • thisbrucesmith||

    The original intent, and the reason SCOTUS upheld it in Smith v. Doe, was that it wasn't originally a list of people not allowed to do certain things. It was just a list of people who had done certain things in the past.

    When states start using it as a basis for restricting people's rights to express themselves, establish residency, and other things citizens take for granted, that's when you trigger a higher standard of scrutiny. At least that's my understanding.

  • Will C.||

    Wow, thisbrucesmith!! You really nailed it good!! That is the exact line of reasoning the 6th Circuit used when it ruled against the state of Michigan retroactively applying new restrictions to offenders that were already on the registry before they were enacted. The court pointed out that Smith v. Doe is no longer a ruling to be relied on. The court held that the registry of today bears NO resemblance to the first-generation registry referred to in Smith v. Doe. The 6th Circuit opined that the retroactive application of new restrictions is punitive in nature and absolutely violates ex post facto. In fact, as I stated earlier, the verbiage of the 6th Circuit's ruling sounds like the court would welcome a full-blown challenge to the whole registry based on how it has grown into "a byzantine code that dictates nearly every detail of an offender's life" and that the registry meets every legal definition and description of a traditional punishment. So the 6th Circuit did two HUGE things:

    (1) Ruled the retroactive application of the registry restrictions violates ex post facto.
    (2) Ruled the same as PUNITIVE.

    By the way, Michigan asked the Supreme Court to issue a stay on the 6th Circuit's ruling and guess what! The Supreme Court DENIED MICHIGAN'S PETITION!!!

  • Will C.||

    Back in August, the 6th Circuit Court of Appeals ruled against the state of Michigan when a group of registrants filed suit against the state for retroactively applying additional restrictions added to their sex offender registry law back in 2006 and 2011. The 6th Circuit ruled in favor of these registrants. The court made two landmark holdings:

    (1) The retroactive application of these newest restrictions violates ex post facto.
    (2) The retroactive application of these newest restrictions is punitive. The court held that the retroactive application of these newest restrictions met every legal definition and description of a traditional punishment.

    The state of Michigan asked the U.S. Supreme Court to stay the 6th Circuit's ruling. The Supreme Court declined to do so. So for now, this fight is going in the registrants' favor.

  • Will C.||

    Also, the overall wording of the ruling seems to indicate that the court would welcome a full-blown challenge to the registry based on the fact that the registry is punitive and the fact the myriad of restrictions that have been tacked on to the sex offender registry law over the years now dictates almost every detail of the offender's life. The court recognized how intrusive and life-crippling these numerous restrictions are.

    The court also seemed to rebuke the state of Michigan because they have the data to analyze to evaluate the true effectiveness of these laws and yet to date haven't done so. So the court's not pleased that all these life-crippling restrictions keep getting tacked on to the registry with NO evidence to support the benefit.

  • Deep Lurker||

    They can flout the prohibition on ex post facto laws because it isn't really a punishment. It's a punireg, sort of like the penaltax of Obamacare. It's either a punishment or a public safety regulation, whichever the State needs at any given moment to argue FYTW.

  • Ken Shultz||

    +1

  • MikeT1986||

    Double Plus Good.

  • The Fusionist||

    Yeah, the Supreme Court says a lot of things - sometimes it says things which contradict prior things it says - but remember, the decisions of the Supreme Court are the law of the land, because the Supreme Court said they are and it's politically convenient to pass the buck to the Supreme Court rather than engage in independent analysis of the Constitution.

    /sarc

  • Hank Phillips||

    ... that or place it before the voters on a non-looter party platform. The courts act to preclude this danger, so it is another way your LP spoiler vote changes the law without necessarily replacing a politician.

  • Mainer2||

    I fully trust the learned members of the supreme court to review this matter in a sober and objective way to conclude that sex offenders are icky and anyone who says otherwise is a perv.

  • loveconstitution1789||

    and perv lovers because they must be destroyed!

    Yet, the politicians do not have the balls to draft laws to allow life sentences for sex offenders. Its like they like sex offenders to get sentences and then after they are off parole and/or probation boss these people on where they can live, who they associate with and what websites they can use.

    The problem is clearly the police state and unconstitutional laws.

  • Hank Phillips||

    If a high-school kid passes a joint to another on his 18th birthday, THAT--say the DEA, DOJ, DHS, INS and most Republican state laws--constitutes felony sale of a narcotic. We've already seen here lately that the same teenager can be arrested and branded a felon if his girlfriend, a week younger, sends him a naughty selfie--even if he had his phone turned off and knew nothing of the photo.
    Republican prohibitionist prudery--not some grandstanding Democrat--is denying US citizens Second Amendment rights and making These States another Guantanamo.

  • Vicki Henry||

    Here is one for the books....
    The Supreme Court's Crucial Mistake About Sex Crime Statistics - 'Frightening and High' (a must read)
    It is very important that you read the abstract below and then the full 12 page essay by Ira Mark and Tara Ellman.
    ABSTRACT
    This brief essay reveals that the sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General's misrepresentations in the amicus brief it filed in this case. The false "facts" stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies. Recent decisions by the Pennsylvania and California supreme courts establish principles that would support major judicial reforms of sex offender registries, if they were applied to the actual facts.
    This paper appeared in Constitutional Commentary Fall, 2015.
    http://papers.ssrn.com/sol3/Pa.....id=2616429

    Women Against Registry

  • Will C.||

    I read this paper and they're right "frighteningly high recidivism rate" is the mantra of those who support, pass, and enforce these laws.

    Shows like "Law & Order: SVU" only serve to fan the flames of public hysteria.

    I think the real impetus of these laws is the fact that sex offenders, especially those who target minors, are a hated, despised group and frankly no one gives a crap if their rights are being violated at every turn. It's government sanctioned and government-promoted discrimination at its worst.

  • Will C.||

    I read this paper and they're right "frighteningly high recidivism rate" is the mantra of those who support, pass, and enforce these laws.

    Shows like "Law & Order: SVU" only serve to fan the flames of public hysteria.

    I think the real impetus of these laws is the fact that sex offenders, especially those who target minors, are a hated, despised group and frankly no one gives a crap if their rights are being violated at every turn. It's government sanctioned and government-promoted discrimination at its worst.

  • ||

    Don't the numbnuts that wrote the bill know that no juveniles use Facebook? Oh well, at least he won't be able to molest great grandma

  • Uncle Jay||

    RE: SCOTUS Will Consider Challenge to Ban on Social Media Use by Sex Offenders
    A man arrested for using Facebook argues that North Carolina's law violates the First Amendment.

    If the SCOTUS was smart, they would just eliminate all vestiges of free speech and be done with it.
    This way our controlling masters in the Politburo, the Soviet Supreme Senate will be free to disseminate only the necessary information the unwashed masses need to know instead of what they want to know. Life will go much smoother for our ruling elitist turds, and they will enjoy life much more.
    Besides, are we really using our civil rights and liberties anyway?

  • Jury Nullification||

    A fairer determination would be for police K-9 dogs to sniff a sex offender after a release, from jail and not masturbation, and determine if that offender is likely to re-offend or not. An alert from the K-9 that the offender would re-offend imposes all current restrictions and a failure to alert negates those requirements. A snout in one's crotch for a 22 second average is not too much of an inconvenience for public safety. Don't doubt or question the abilities of the K-9 because SCOTUS does not.

    The police can be trusted to carry out this measure with the same objectivity, accuracy and certainty as they do with the use of K-9s and drugs.

  • patskelley||

    Yes, let's take those pervs off the internet where their exploits and perv networks can be tracked and recorded and corralled...then drive them further underground where they belong - where they will be freer to skulk around in the dark net of pseudonyms and borrowed user ids. That's just one prong of the iceberg. All it takes is one SJW sirene to catch you pissing on a tree and you too can belong to that perv club. We all agree pervs are horrible people - and should be trounced, but think bigger. If one 'class' of people in a so-called free country can legally ban another 'class' of people, consider newly discovered or defined definitions of what constitutes hate speech, racist, sexist, disagreers of protocal, tradition, spouters of history.., ad nauseum. No worries. You only need to worry about the law if you are a law breaker. Hint: The laws, they are a changing.

  • IMissLiberty||

    Double-jeopardy and ex post facto, too. This is punishment, again, for a prior crime, enacted after-the-fact. Three-times unconstitutional.

  • The artist known Dunphy||

    Jinx!!!!! I didn't see your post until I posted and I 100% agree!!!!!!!

    Great minds n stuff

  • The artist known Dunphy||

    As a general rule, if Eugene Volokh's writing an amicus brief, I'm on his side

    I also see these laws as BLATANT expost facto violations. So it's not just the 1st amendment issue

    I haven't read Volokh's brief yet but I've corresponded on the expost facto issue on the old Volokh Conspiracy and I see it as a frequent violation of rights - new restrictions AFTER conviction

    How can somebody take a plea deal fairly if conditions CHANGE expose facto

    VAWA did this to a lot of people who pled guilty to DV offenses however minor then 10 yrs later lost their GUN RIGHTS

  • ForcaShqipnia||

    This country is still ridiculously puritanical when it comes to its sex laws.

  • Will C.||

    And yet just about every business out there won't hesitate one second to use sex as a selling tool. Let's also look at sexually violent video games. Let's look at pornographic rap lyrics, etc. Our society is sex obsessed on one hand and anti-sex prudes on the other.

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