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January 30, 2011

Is it constitutional to criminalize having a Facebook page?

The question in the title of this post is prompted by this local story from North Carolina, which is headlined "Lawyers take on Net predator law." Here are excerpts:

Registered sex offenders aren't allowed at schools, churches, shopping malls or other places where children may gather in the real world.  But what about Facebook and other spots in the virtual world?   Two local lawyers say it's unconstitutional to bar registered sex offenders from such social networking sites, and they're seeking to overturn a state law passed by the legislature three years ago.

Across the state last year, 75 offenders were charged under the law, which targets social networks such as MySpace and Facebook that allow minors as members.  Eight men were charged by the Durham police and sheriff's departments last summer after an investigation determined that the men were maintaining accounts on the sites.

Two of those men -- Christian Martin Johnson, 34, and Lester Gerard Packingham, 29 -- are now challenging the Information Age statute.  "The regulation does not just keep a registered sex offender from engaging in obscene speech with a minor," wrote Johnson's lawyer, Glenn Gerding of Chapel Hill, in a motion filed late last month. "It prohibits any and all speech, however innocent, even if it's a religious conversation between the offender and his priest, or a discussion of family matters between the offender and his mother."...

But Lt. Gov. Walter Dalton, who sponsored the law as a state senator, says there are other ways registered sex offenders can communicate. "We do have the mail," he said. "We do have telephone."

Dalton said the Internet restriction is no different from a sex offender being prohibited from running a food vending cart on a school campus.  "When you are deemed to be a sexual predator, sometimes you do not have all the full rights of every citizen out there," Dalton said.  "It's got a good public purpose.  We don't need sex offenders engaging with minors."

But online communication is not the same as physical proximity, said Rebecca Jeschke, a spokeswoman for the Electronic Frontier Foundation, a San Francisco-based organization committed to Internet freedom. "Speech is very well-protected under the Constitution," she said. "It's definitely a problem to say certain classes of people can't talk on the Internet."...

Johnson's underlying sex offenses were two counts of taking indecent liberties with a child in Franklin County.  He pleaded guilty to those after initially being charged with more serious crimes.  After serving his sentence, Johnson worked as a computer software developer, but Gerding said the law has kept his client from integrating his company's product with Facebook and MySpace.

"Mr. Johnson was unable to perform those work-related assignments," the attorney wrote. "[He] was ultimately fired from his job in part because of the restrictions and in part because of the charge in this case."

Gerding said the law is so broad that it prevents registered sex offenders such as Johnson from accessing websites such as Google or amazon.com, because these sites allow a user to create a profile and to share information and photos with other members. "That could include sharing a recipe on BettyCrocker.com, exchanging information about heart disease on MedHelp.com, or speculating about the University of North Carolina Tar Heels sports teams on www.Scout.com," Gerding said....

Dalton said that if evidence shows an offender had no bad intent in accessing a site, a judge could consider that in meting out punishment.  Still, Dalton said, that doesn't mean the law is unconstitutional.

January 30, 2011 at 07:48 PM | Permalink

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In The Tyrants, Clive Foss makes one thing clear. * It is not politics or religion or the usual suspect isms that are the common denominators in tyranny. It is the secret police, the informants and the destruction of privacy that feeds the totalitarian state.

* "From Herod to Papa Doc Duvalier, from Nero to Saddam Hussein, here are 50 chilling portraits of the despots whose iron-fisted rule left an indelible mark on the history of the world. Presenting a compelling chronology of the moments in history when the principles of government and law were corrupted by the vanity of the ambitious and unscrupulous, "The Tyrants" recounts the story of each dictator individually. From irresistible rise to inevitable fall, it describes how these men and women - as often outcasts or outsiders as kings or queens - were able to manipulate the political climate of their states to seize absolute power and examines the destruction and suffering they invariably left in their wake."

Posted by: George | Jan 30, 2011 8:58:22 PM

Dear Professor Berman:

The very first sentence of this article should send chills down the spine of any liberty loving person (but not money earning law professors or retired AsUSAGs}:

"Registered sex offenders aren't allowed at schools, churches, shopping malls or other places where children may gather". What real world is this? There are many (of the 750,000 registered sex offenders in the US) who live in absolute fear, who have NOT HARMED ANYONE! I have the studies to prove this with anyone, anywhere.

Anthony (Antonia) Kennedy said thay Megan's Law was not punitive, but civil.

What a load of engineering, apologist, lawyer BS!

Thus was created the real world by the Supreme Court (aka, previous Justice Department Apologists), John Walsh (monetary gains), Ernie Allen (abettor of child porn), Mark Foley (pervert), James Sensebrennner (just plain idiot} and signed into law by Bill (I did not have sex with that woman) {Monica Lewinsky) Clinton, and the new idiot out of Texas (R).

George Bush was no better. But only for political gain.

What does that tell us about us? Adolph seemed to understand. We should not go there!

I have lost all respect for any constitutional decisions by the SCOTUS. Maybe your followers, your children and grandchildren would be better off if they did also.

We are moraly, spiritually and intellectualy bankrupt!

Have another App to teach you how to think!

Posted by: albeed | Jan 30, 2011 11:24:48 PM

Interesting case and discussion on here. cant wait for the hearing on February.

Just a writer named Martha

Posted by: martha | Jan 31, 2011 12:37:37 AM

Politicians on both sides of the aisle seem to preach fiscal responsibility.

This these types of laws, restrictions, etc., are as good a place to start as any in trimming budgets on all levels of government.

Tell me which of the following is the wiser route.

1...Throw money down a hole to monitor thousands of offenders to make sure they don't go to malls, walk their pets in a park, practice their religion, grab a burger, or job search online. In many cases no crime was committed against a child (or any physical harm to an individual). At the same time, the public is whipped into a fervor and the so-called criminal sits at home collecting public assistance because there is no other option.

2...Allow these people to continue with their lives after serving their time. Finding employment, paying taxes, contributing to the economy, and so forth. Those otherwise wasted funds can be funneled towards solving murders, arsons, etc.

We all know there has been study after study, after study on the effectiveness of these restrictions and the recidivism rates for offenders. Nearly everyone seems to be in agreement with those reports except the politicians. At the very least, they do not show they agree in public. Several admit that they know it wrong, they know its a waste of resources, but saying that equates to political suicide.

I have a feeling we are coming to the point where we place the straw that will finally break the camel's back.

Posted by: Questions_Authority | Jan 31, 2011 1:57:03 AM

"Dalton said that if evidence shows an offender had no bad intent in accessing a site, a judge could consider that in meting out punishment"

This is a perfect example of modern prosecutorial discretion: "If you're innocent, I'm still going to convict you, but I may only give you 30 years in prison instead of 40."

Posted by: NickS - student | Jan 31, 2011 8:14:04 AM

Apparently nothing is unconstitutional as long as courts are willing to give cops, prosecutors and lawmakers carte blanche.

Posted by: John K | Jan 31, 2011 10:39:17 AM

John K:

Professor Berman and Bill Otis agree that NOTHING is unconstitutional as long as courts (mostly previous federal/local prosecutors) are willing to give cops, prosecutors and lawmakers carte blanche.

I created wealth, not the government! These b ds, should do real work. And to think that I am funding their pensions and retirements,

Thomas Jefferson was right.

Posted by: albeed | Feb 1, 2011 12:09:56 AM

It's unfortunate that so many states now have unconstitutional internet laws but are getting away with punishing innocent people just for engaging in protected adult speech on the internet, especially in venues (chat rooms for example) that restrict access to adults. Yes, cops are posing as minors in adult chat rooms and making arrests for supposedly soliciting a fake child. Talk about a waste of my tax dollors.

Posted by: John Smith | Dec 14, 2011 2:49:06 PM

And the Beat goes on!!
Apparently", the leaders of our country are marching to a different drum these days, and it isn't a favorable beat to our citizens. They just do any dang thing they want and were just suppose to shut up and take it on the chin.

Posted by: Ray Skiles | Dec 19, 2011 1:03:13 AM

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