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November 7, 2015

Split NC Supreme Court upholds state prohibition on sex offenders using social media available to kids

As reported in this local article, yesterday the "N.C. Supreme Court has upheld a state law prohibiting registered sex offenders from using Facebook or other social networking sites that minors can join." Here is more about the notable ruling:

In the split opinion issued Friday, the justices reversed an N.C. Court of Appeals ruling that found the 2008 law too broad and vague, and therefore unconstitutional. The challenge was brought by Lester Gerard Parkingham Jr., a registered sex offender in North Carolina, who faced additional charges after Durham police found a Facebook page he created under an assumed name.

The case raises questions about whether such laws prohibit sex offenders from participating in web-based forums, which have become virtual town squares, as they re-enter society. The four justices in the majority ruled that the “incidental burden imposed” upon convicted sex offenders “is not greater than necessary to further the governmental interest of protecting children from registered sex offenders.”

Writing for the majority, Justice Robert Edmunds stated, “the General Assembly has carefully tailored the statute in such a way as to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information” about minors. For example, Edmunds wrote, the defendant could join The Paula Deen Network site, where people swap recipes, because users must be at least 18.

Edmunds wrote that the law is meant to limit conduct and that it only incidentally affects speech. “The justification of the statute — protecting minors from registered sex offenders — is unrelated to any speech on a regulated site,” he wrote.

Emails and text messages aren’t restricted by the law. “Accordingly, the regulation leaves open ample channels of communication that registered sex offenders may freely access,” Edmunds stated in the majority opinion.

Justice Robin Hudson dissented, and Justice Cheri Beasley joined her in a minority opinion describing the law as unconstitutionally vague. They contended that the law prohibits sex offenders from “communicating with others through many widely used commercial networking sites.” It also could restrict sex offenders from joining news sites and being able to use retailers such as Amazon....

In North Carolina, where 14,268 people are entered in the N.C. Sex Offender and Public Protection Registry database, civil liberty organizations have paid close attention to Packingham’s case. The 2008 restriction was part of a legislative package that N.C. Attorney General Roy Cooper advocated for years. Packingham argued that prohibiting him from those social media sites is a violation of his rights to “free speech, expression, association, assembly and the press under the First and Fourteenth Amendments.”...

Glenn Gerding, the Chapel Hill attorney who represented Packingham, argued several years ago that the law as written could make it difficult for a registered offender to engage in routine Internet activity, such as a Google search. The law defines a “commercial social networking website” as one that derives revenue from membership fees or advertising, facilitates social introductions and allows users to create pages to post information.

The full ruling in North Carolina v. Packingham, No. 366PA13 (N.C. Nov. 7, 2015), is available at this link. The majority opinion in this case explained why the court believed that the North Carolina statute being challlenged was more narrowly tailored than somewhat similar statutes struck down by federal courts in Indiana and Louisiana. But the dissent cites some recent US Supreme Court rulings to make the case that the NC statute is still not sufficiently limited to be compliant with the First Amendment.

Though I am never good at predicting whether and when the Supreme Court will take up an important criminal justice issue, I would not be at all surprised if the Justices show some interest in this case if (when?) the defendant were to seek certiorari.

November 7, 2015 at 05:35 PM | Permalink

Comments

ok---so if this is the result of a crime committed after the enactment of this statute, maybe ok, but for sex offenders who committed their crimes before it was adopted, NFW.

Posted by: federalist | Nov 7, 2015 9:36:15 PM

And the Fascist nonsense continues, right Alito, Roberts, Kennedy, Thomas!

Note: This does not invoke Godwin' Law as it never used the na_i word!

It is hard to limit the unconstitutional stupidity after you have let the horse out of the barn. Let's hope that the "womyn" on the SC have more cajones than the eunuchs.

Posted by: albeed | Nov 8, 2015 6:39:31 AM

As the status conditions keep mounting they become the mirror image of parole and probation conditions and that weakens their "merely regulations" status.

Posted by: Anon | Nov 8, 2015 1:59:47 PM

Doug, big case. I have a case pending in Superior Court which will be directly impacted. I know Packingham's lawyer and will contact him to see if he is going to cert it up.

Lots of issues. Not the least is whether this statement in the Packingham decision, on page 26 , can withstand scrutiny in light of the Court's ruling in Johnson that vagueness claims can be categorical. "Vagueness cannot be raised by a defendant whose conduct falls squarelyh within the scope of the statute." Maybe I'll try to cert my case up pretrial

bruce

Posted by: bruce cunningham | Nov 8, 2015 2:08:03 PM

Seems like this would be a good candidate for cert -- the NC Court's ruling puts it at odds with interpretation of federal constitutional rights with three or four fed circuits. Should be interesting to see how it plays out

Posted by: Guy | Nov 8, 2015 2:23:29 PM

Bruce

You and I have not always seen eye to eye but all I can say in this situation is...go go go!

Posted by: Daniel | Nov 8, 2015 3:30:08 PM

Would this blog be illegal in N.C.?

Posted by: Anon | Nov 8, 2015 6:12:47 PM

There are no Americans who support this. Anyone who does should be attacked daily by any means that is legal.

People who are affected by this nonsense should go out of their way to be around random children all the time. But of course all people who are listed on a Registry should already be doing that, in any way that is legal, of course.

Posted by: FRegistryTerrorists | Nov 9, 2015 8:24:47 AM

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