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August 20, 2013

"North Carolina appeals court strikes social media ban for sex offenders"

The title of this post is the headline of this local press report on a notable intermediate state appeals court ruling today.  Here are the details:

The North Carolina Court of Appeals on Tuesday struck down North Carolina's ban on registered sex offenders using social media sites like Facebook and Twitter. The court said the ban in N.C. General Statute 14-202.5 "is not narrowly tailored, is vague, and fails to target the 'evil' it is intended to rectify."

"The statute violates the First Amendment's guarantee of free speech, and it is unconstitutional on its face and as applied. Accordingly, we vacate the trial court's judgment," wrote the court.

The ruling centered around a Durham case in which Lester Gerard Packingham appealed his felony conviction for accessing a commercial networking site last year. According to the trial records, the Durham Police Department was looking at evidence that registered sex offenders were using the websites MySpace and Facebook, and an officer recognized Packingham's photo on Facebook.

The North Carolina law says registered sex offenders may not use commercial social media sites if they know the site "permits minor children to become members or to create or maintain personal Web pages."

But in its ruling, the appeals court said the law "arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal [of preventing contact with children.]"

North Carolina Attorney General Roy Cooper wanted the law but admits it may have to be rewritten, but he will try to appeal the North Carolina Supreme Court. Cooper notes that there are still laws on the books that investigators can use to charge suspects with soliciting children online. However, he believes we need a law to try to prevent child sex crimes before they happen....

If Cooper's attempt at an appeal fails, he says he will go back to the legislature to see if they can craft a new sex offender social media law that will withstand a legal challenge.

The full 21-page opinion in NC v. Packingham, No. 10 CRS 57148 (N.C. App Aug. 20, 2013), is available at this link.

August 20, 2013 at 10:16 PM | Permalink

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Comments

Good. The essential problem with these laws (and, indeed, many of the laws surrounding the sex offender registry) is that they have the appearance of providing public safety, but don't really do anything other than essentially force people who have long-since served the sentences for their respective crimes to live in constructive exile, both literally in terms of residency restrictions and state-mandated homelessness, as well as metaphorically in terms of statutes like these.

I understand the desire to want to prevent sex crimes before they happen, but these laws won't do that (again, all they really accomplish is give the appearance of promoting public safety, while gutting the constitutional freedoms of an unpopular people). The bottom line is this: if someone is determined to solicit a child online (a crime which, presumably, in NC carries hefty penalties), then they will not be deterred by the presence of an additional law which also makes it a crime to have a social media presence. In this modern era where NOT having any social media presence automatically makes one suspect in terms of social relationships and the workplace, statutes like these are much akin to banning all SOs from using the telephone for the fear that they might use that technology to further their nefarious desires.

It's bullshit, and I'm glad courts are starting to see through the "but think of the children" fearmongering nonsense.

Posted by: Guy | Aug 21, 2013 9:33:23 AM

Yeah vague, and the criminals weren't officially told that this would constitute a violation.
"Fails to target the 'evil'', sure, just like stop & frisk?

\\"they have the appearance of providing public safety, but don't really do anything
other than essentially force people..." // --"Guy"

They don't prevent sex offenders from internet trolling for victims?
Isn't it through social media that many-a-victim has been brought to abuse?
Wasn't that the actual M.O. of at least some of the perpetrators?

Posted by: Adamakis | Aug 21, 2013 10:07:30 AM

They don't prevent sex offenders from internet trolling for victims?
Isn't it through social media that many-a-victim has been brought to abuse?
Wasn't that the actual M.O. of at least some of the perpetrators?

No, they don't. Anyone who wants to find a victim through social media, and has made the choice to commit that crime likely won't be deterred by the presence of another law making the use of social media a crime. It only further punishes and ostracizes individuals who have completed their sentences.

Furthermore, the spectre of sex offenders trolling social media for victims is overblown. Teens do receive sexual solicitations online, but the vast majority of those are from their peers. Anyway, the vast majority (~90%) of sex offenders don't reoffend (compared with ~40% of other types of criminal offenders who don't reoffend, yet we don't impose broad restrictions on them post-sentence).

But regardless of the efficacy of these laws in preventing sexual abuse, or recidivism rates, or anything of the sort -- none of that really matters. For sure you could poke out the eyes and cut off the hands of all sex offenders, and likely that would serve the same "think of the children" ends that do such bans on social media, but there is a countervailing consideration to contend with: to wit, the United States Constitution.

I'm sure the "actual M.O." of some perpetrators also involved using a telephone, or a car, and yet there aren't fevered bids to restrict access to those pieces of technology. And, indeed, you could apply your same logic to those: if sex offenders didn't have cars or telephones, they wouldn't be able to drive to where victims reside, and wouldn't be able to call them.

Yet such a practice is not workable, ex post facto. Nor is it constitutional. Nor does it bear any resemblance to a rational solution to a complex and vexing problem.

Posted by: Guy | Aug 21, 2013 11:14:51 AM

Guy:

I am in total agreement with you that almost all SO laws are really unconstitutional P'sOS.

That so many people need them to justify themselves and their borderline morality just boggles my mind. It is the ultimate folly of self-deception (and full employment in LE).

That's not to say that there aren't bad people out there, but the laws as currently written are crap. They don't prevent anything, just new institutional establishment and justification of Jim Crow type laws.

Posted by: albeed | Aug 21, 2013 12:01:42 PM

Good comments, Guy and albeed.

Have I mentioned lately - F the un-American terrorists who support these kinds of useless, nothing-but-harassment laws?

The Registries just weren't good enough, huh? Remember, we all "needed" them just so we could be "informed". That was just a huge lie. If they had remained only for information, and people couldn't get imprisoned for not properly giving a criminal regime some bit of information, then they may have worked. What a colossal failure.

I am on Facebook precisely because un-Americans have told me that I should not be. I will always be on Facebook, regardless of any laws passed, even if I have to hire someone to do it for me.

However, since Facebook actively attempts to keep some U.S. citizens from using its services, there should be no U.S. governments on Facebook. The criminal regimes should be demanded to get off and stay off of Facebook and any other exclusionary Internet services.

Posted by: FRegistryTerrorists | Aug 21, 2013 12:37:03 PM

Once an SO serves their sentence, that should be it, they shouldn't continue to be punished. None of this,"can't use social media, supervision for 5 yrs to life, can't be any place that children may congregate" garbage.
The world lives on the computer and the world is full of children. Once their sentence, which until things change, is still unfairly long, is served, SO's should have the same right to build a decent life as anyone else.

Posted by: kat | Aug 21, 2013 1:32:11 PM

While I'm obviously in favor of this result, at this constitutes a gross overkill of the first amendment, I would like to note that the three judges in this UNANIMOUS decision are rock-solid in their historical decisions that support state positions more than defendant positions more often than not. In addition, the judge giving the opinion, Rick Elmore, was actually endorsed by RedState.com (expand story) with the following:

Judge Elmore has been endorsed by North Carolina’s only elected Republican Chief Justice of the Supreme Court, I. Beverly Lake, Jr. (ret.). He is also endorsed by the only Republican to win four statewide judicial races in North Carolina, Associate Justice Robert Orr (ret.). So, the message is clear:...tell everyone you know in NC to vote for Judge Rick Elmore for NC Court of Appeals on Nov. 2. Because the Court of Appeals is not an entry-level job, and being “conservative” is not enough.

In addition, co-assenter Christopher Dillon was endorced by the Johnston County Republican Party as a rock-solid conservative.

Only Martha Geer could be construed as less than conservative, as she was endorsed by the AFL-CIO in her election. But the bigger impact comes with the fact that the unanimous decision involved a precise, originalist interpretation of the Constitution, both State and Federal.

Posted by: Eric Knight | Aug 21, 2013 2:23:10 PM

Eric:

I enjoy your insight and analysis. You should comment more often!

Posted by: albeed | Aug 21, 2013 9:10:19 PM

Not sure where Eric is from, but calling Judge Geer "less than conservative" is the understatement of the century. She's highly respected and incredibly smart, and her opinions are usually well-reasoned. However, for those who actually understand the NC CoA, it's pretty safe to place Judge Geer significantly left of center on the court (and on a court that presently sits, as a whole, left of center). Also, it's flat wrong to say Judge Elmore typically favors the State's positions. The most cursory review of his opinions will flesh that out (if you need a list of examples, along with a list of times the Supreme Court has reversed him in a criminal case or rejected a dissent he authored, I could certainly come up with one). He was endorsed by conservatives, not because he is conservative, but because his previous challenger was still an appellate clerk and had never truly practiced law (echoed by the RedState quote, noting that "Because the Court of Appeals is not an entry-level job, and being 'conservative' is not enough"). See also: http://www.wral.com/news/local/politics/story/7550097/. Judge Elmore is a great person, but it's beyond-the-pale to say he favors the State in criminal matters. As for Judge Dillon, it's too early to tell how judicial philosophy will play out, notwithstanding his campaign endorsements. On a case of this magnitute, I would have been surprised to see him, as one of the most junior judges on the court, pen a dissent when on a panel with two of the most senior judges.

Long story short, if you're going to make claims about the judicial philosophy of judges, you may want to know them (and their opinions) a little better and rely less on campaign statements.

Also, notwithstanding the dissent, I'd be shocked if the Supreme Court did not accept a petition for discretionary review considering the importance of this case. It's just a shame that the intermediate court of appeals -- an error correcting court -- felt it needed to make such a sweeping constitutional proclamation. I'm not saying the CoA was wrong, just that it wasn't the type of decision the court should be issuing. Striking down a statute, especially facially, on First Amendment grounds is the type of decision that needs to come from the state's highest court. If the CoA felt there was an as-applied issue, fine. But frankly, this rings of judicial activism.

Posted by: J.D. | Aug 22, 2013 10:15:51 AM

My point for bringing out the judges' endorsements was mainly to show that these three judges weren't the "bleeding-heart liberal"-type judges that people assume when they read of this unanimous opinion. Very few people understand the constitutional aspects of laws that involve sex offenders, particularly those whom are completely free of the court system. In addition, as someone who employs several people, all but one floor position does not require access to a computer with social networking. If I were conducting my business in North Carolina, I would have to fire three of my employees (or actually never hire them in the first place) because of this law.

To summarize the case, the appellant proved that he was shut out of much of the Internet. The state's case was, in a nutshell, a "Minority Report" argument, that the offender COULD have access to chatting with children. Indeed, any cell phone could be used as most, if not all, plans include access to sites that allow contact with children. I just voice-googled "child chat sites" on my own AT&T account and came up with a list of several sites that allowed such contact, which would render any modern cell phone ownership as illegal based upon the CURRENT law.

The Internet ban (which was the effect of the actual details of the law, not the ubiquitous "social networking ban" title) is as broad a restriction as not allowing registrants to drive cars, send letters, or even walk down a sidewalk. Just like social networking sites, ALL allow potential contact with children. And since over <99% of all illicit contact on the Internet is initiated with non-registrants, this type of law actually detracts from safety, not adds to it.

I look forward to an appeal. If this somehow got to the US Supreme Court (one can only WISH!), it would be knocked down by a significant majority. Only John Roberts would rule in favor of the ban, in my opinion.

Posted by: Eric Knight | Aug 22, 2013 1:14:02 PM

Eric:

Both Alito and Roberts might support this unconstitutional law (there are only state given permissions from these two, and YES, that is the ultimate definition of Fascism) and I am glad that a simple Court of Appeals could see through this BS. While we're at it, maybe we should deny all felons access to the Yellow Pages (whose existence is precarious), because it will let them know where all the banks and gun shops are. Hell, they should only be given plastic forks and knives for eating utensils.

I am waiting for additional judicial "opinions" which are getting more and more creative in supporting government tyranny, i.e., Obamacare is really and only a tax (I never saw the word used once by the Dumbocrats) in supporting this unconstitutional law either.

Posted by: albeed | Aug 22, 2013 8:36:33 PM

Quick follow-up -- the state Supreme Court has allowed the State's motion for a temporary stay (Case No. 36613). Now it's just a matter of waiting and seeing whether the Court will grant the State's petition for discretionary review or whether the Court will deny the PDR and dissolve the temporary stay.
See the list of petition rulings: http://appellate.nccourts.org/petitions/p-08282013.pdf

Posted by: J.D. | Aug 28, 2013 2:36:47 PM

So what has happened in the supreme court? I hope this is the beginning of the end of these unconstitutional and dicriminatory laws.

Posted by: alice, concerned citizen | Jul 22, 2014 10:53:04 PM

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