Does a North Carolina statute making it a felony for registered sex offenders to “access” social networking websites that allow minors to have accounts violate the First Amendment?
In 2002, Lester Gerard Packingham pled guilty to taking indecent liberties with a child and was registered as a sex offender in the state of North Carolina. After posting on Facebook in 2010, Packingham was arrested and convicted under a North Carolina statute that prohibits all registered sex offenders from accessing any social networking website. Packingham appealed, arguing that the law violated the First Amendment. The Supreme Court of North Carolina affirmed Packingham’s conviction, finding that the law was an acceptable content-neutral speech restriction. Packingham argues that the law is substantially overbroad and is therefore unconstitutional both on its face and as applied to this case under either strict or intermediate scrutiny. North Carolina maintains that the law is narrowly tailored to achieve the government’s interest in protecting children from sexual abuse and therefore satisfies intermediate scrutiny. The Supreme Court’s decision in this case will impact the balance between state governments’ interest in public safety and convicted persons’ First Amendment rights.
Questions as Framed for the Court by the Parties
The North Carolina Supreme Court sustained petitioner's conviction under a criminal law, N.C. Gen. Stat. § 14-202.5, that makes it a felony for any person on the State's registry of former sex offenders to access a wide array of websites-including Facebook, YouTube, and nytimes.com-that enable communication, expression, and the exchange of information among their users, if the site is know[n] to allow minors to have accounts. The law—which applies to thousands of people who, like petitioner, have completed all criminal justice supervision—does not require the State to prove that the accused had contact with (or gathered information about) a minor, or intended to do so, or accessed a website for any illicit or improper purpose. The question presented is: Whether, under this Court's First Amendment precedents, such a law is permissible, both on its face and as applied to petitioner-who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring God is Good!
On May 30, 2012, Lester Gerard Packingham, a registered sex offender, was found guilty of using a social network website in violation of N.C. Gen. Stat. § 14-202.5. See State v. Packingham, 368 N.C. 380 (2015). N.C. Gen. Stat. § 14-202.5 is a North Carolina statute that makes sex offenders’ use of social networking websites, like Facebook, illegal. See id. at 2.
An officer of the Durham Police Department discovered Packingham’s Facebook profile while investigating sex offenders’ illegal use of commercial networking sites. See id. The officer was able to identify and confirm Packingham’s connection to the Facebook profile, although the name on the account was “J.R. Gerrard,” based on the profile photo. See id. After discovering Packingham’s Facebook account, the officer searched Packingham’s home and found a document titled “Changes to North Carolina Sex Offender Registration Laws.” See id. This notice, which Packingham had signed, explained that registered sex offenders are prohibited from using social networking websites. See id.
Packingham was indicted by a grand jury on September 2010 for violating the North Carolina statute by accessing Facebook. See Packingham, 368 N.C. at 2. He filed a motion to dismiss the charge, claiming that N.C. Gen. Stat. §14-202.5 was unconstitutional. See id. The trial court denied Packingham’s motion. See id. Because the trial court determined that both Packingham and North Carolina considered Facebook a social networking site “as contemplated by” the statute, the trial court found that the statute was constitutional as it applied to Packingham and declined to “address defendant’s facial challenge.” See id. at 2, 3. Packingham appealed the trial court’s determination to the Court of Appeals, but the Court of Appeals denied his petition. See id. at 3.
On May 30, 2012, a jury found Packingham guilty of accessing a social networking site as a registered sex offender. See Packingham, 368 N.C. at 3. He was sentenced to six to eight months in prison. See id. Packingham appealed the trial court’s decision to the Court of Appeals, again claiming that the North Carolina statute was unconstitutional. See id. The Court of Appeals recognized that the statute involved Packingham’s First Amendment rights and held that “intermediate scrutiny was appropriate.” See id. The Court of Appeals determined that N.C. Gen. Stat. § 14-202.5 was unconstitutional and vacated Packingham’s conviction. See id. at 4. The court noted that N.C. Gen. Stat. § 14-202.5 “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.” See id. at 3.
North Carolina appealed the Court of Appeals’ decision. See Packingham, 368 N.C. at 26. The Supreme Court of North Carolina reversed the Court of Appeals’ opinion and held that the statute was not vague in its application to Packingham. See id. at 27. The Supreme Court of North Carolina explained that, while in other situations the terms of the statute may be vague, it is unquestionable that Facebook is a “social networking website” and that Packingham “accessed” Facebook when he logged on to the site to post messages. See id.
STRICT SCRUTINY VERSUS INTERMEDIATE SCRUTINY
Packingham argues that N.C. Gen. Stat. § 14-202.5 should be subject to strict scrutiny because, contrary to the holding of the Supreme Court of North Carolina, the statute is neither a law that regulates conduct with an incidental effect on speech under United States v. O’Brien, 391 U.S. 367 (1968), nor a law that regulates the time, place, or manner of speech in a content-neutral manner under Ward v. Rock Against Racism, 491 U.S. 781 (1989). See Brief for Petitioner, Lester Gerard Packingham at 35–36. North Carolina disagrees, arguing that N.C. Gen. Stat. § 14-202.5 is a content-neutral time, place, and manner restriction, and therefore is subject only to intermediate scrutiny. See Brief for Respondent, North Carolina at 15–16.
First, Packingham claims that the law does not regulate conduct but instead directly regulates protected First Amendment activities. See Brief for Petitioner at 21. Packingham argues that actively communicating using social networking websites and receiving information from social networking websites are obviously protected speech. See id. at 24. Packingham analogizes this use to reading about governmental affairs: such reading is protected First Amendment activity although the reader never actually speaks, andthe government could no more prohibit reading than it could prohibit publishing. See id. Packingham further argues that placing prohibitions on a physical subcomponent of protected activity is no different from placing prohibitions on the protected activity itself; First Amendment protections cannot be circumvented by a law seemingly “regulating some physical aspect of protected activity” that actually affects the protected activity. See id. at 21. For example, Packingham argues that a law prohibiting the physical lifting of a newspaper is not a prohibition on conduct but instead a prohibition on reading a newspaper and thus a speech restriction, subject to strict scrutiny. See id. at 22. N.C. Gen. Stat. § 14-202.5, Packingham argues, is analogous to such a law because its prohibition on “accessing” social networking websites attempts to circumvent the First Amendment by prohibiting the physical step required to engage in protected speech activities on those websites; therefore, Packingham argues, N.C. Gen. Stat. § 14-202.5 should be subject to strict scrutiny. See id.
Second, Packingham claims that the law fails to qualify as a content-neutral time, place, or manner restriction. See Brief for Petitioner at 36. Packingham argues that all previous time, place, and manner cases dealt with laws of limited scope, such as a law regulating sound amplification devices in a public park or laws that restrict protesting in a zone around abortion clinics. See id. at 37. Packingham argues that N.C. Gen. Stat. § 14-202.5 is incomparable due to its global scope—it prohibits all communication with the billions of users of social networking websites. See id. at 37–38. Additionally, Packingham argues that the purpose of time, place, and manner restrictions is to facilitate the workable administration of public spaces, such as laws that regulate parades or protests on city streets or laws that restrict disruptive speech in and around schools during school hours. See id. at 38. Restricting access to social networking websites does not promote this interest, Packingham argues, because one user’s access to social media does not impact any other user’s access. See id. at 39.
North Carolina counters that N.C. Gen. Stat. § 14-202.5 is subject to only intermediate scrutiny because the law is a time, place, or manner restriction that does not discriminate on the basis of content. See Brief for Respondent at 15–16. North Carolina claims that the law is content-neutral because it was enacted to protect the public from sex offenders and not to promote or discriminate against any particular message. See id. at 16–17. The law restricts only the available forums for speech, North Carolina argues, not the content of that speech. See id. at 17. North Carolina analogizes N.C. Gen. Stat. § 14-202.5 to a law prohibiting standing in an abortion-clinic buffer zone that was upheld because the law prohibited all speech, regardless of message, inside the proscribed zone. See id. N.C. Gen. Stat. § 14-202.5, North Carolina elaborates, similarly prohibits all speech by registered sex offenders, regardless of message, inside the proscribed “zone” of social networking websites. See id. Additionally, North Carolina contends that N.C. Gen. Stat. § 14-202.5 applies only to registered sex offenders because, as a group, they are the most likely to utilize social networking websites for the purpose of sexual predation. See id. at 18. The danger posed by sex offenders, North Carolina argues, permits states to enact more restrictive laws on this group than would be permitted for the public at large. See id. at 19–20.
North Carolina expands this argument by claiming that N.C. Gen. Stat. § 14-202.5 is a classic time, place, and manner restriction because it restricts only the locations where registered sex offenders can speak. See Brief for Respondent at 20. North Carolina disputes Packingham’s characterization of time, place, and manner restrictions as addressing only the workable administration of incompatible uses of public spaces; North Carolina argues that the government can have interests unrelated to this purpose. See id. at 21. North Carolina cites, as examples, a law prohibiting picketing for the purpose of protecting residential privacy and a law prohibiting hanging signs on private residences for the purpose of “eliminating visual clutter,” both of which the Court analyzed under intermediate scrutiny. See id. Finally, North Carolina argues that Packingham misapplies the test for whether a law is subject to intermediate scrutiny: while the “global” scope of N.C. Gen. Stat. § 14-202.5 is relevant for determining whether a law satisfies intermediate scrutiny, it is irrelevant for deciding whether intermediate scrutiny applies in the first place. See id. at 21–22.
WHETHER THE STATUTE IS NARROWLY TAILORED
Packingham argues that N.C. Gen. Stat. § 14-202.5 violates the First Amendment regardless of whether it is subject to strict scrutiny or intermediate scrutiny because it is substantially overbroad in scope. See Brief for Petitioner at 35–36. Packingham argues that even under the lesser standard of intermediate scrutiny, a law must be “narrowly tailored to serve a significant governmental interest” and not foreclose alternative methods of communication. See id. at 43. Packingham argues that any law that significantly impairs or restricts speech unnecessary to achieve the government’s objective fails narrow tailoring. See id. at 44. Packingham argues that N.C. Gen. Stat. § 14-202.5 criminalizes an unnecessarily substantial amount of speech for its purpose of protecting minors from sexual abuse. See id. Packingham claims that the broad statutory definition of “social networking websites” not only prohibits access to commonly understood social networking websites, such as Facebook, YouTube, or Twitter, but also websites that are not commonly understood social networking websites, such as Skype, bettycrocker.com, and nytimes.com. See id. at 8, 45–46. Packingham further argues that the law applies to an over-inclusive group of people: all registered sexual offenders. See id. at 46. Some sexual offenses not involving children require registration, and, Packingham argues, the state’s goal of preventing the sexual abuse of children online is not furthered by criminalizing those registrants’ access to social networking websites because they do not pose a heightened risk to children. See id. at 46–47.
North Carolina disputes both the standard for intermediate scrutiny and the actual scope of N.C. Gen. Stat. § 14-202.5. See Brief of Respondent at 25–27. North Carolina argues that even if Packingham demonstrates the possibility of a less-restrictive method of achieving the state’s interest, this demonstration does not show a violation of the narrow tailoring requirement of intermediate scrutiny because intermediate scrutiny does not require the least restrictive means possible. See id. at 25. North Carolina argues that the state legislature tried various less-restrictive means of protecting children from sexual predators online but found all methods short of the current law were inadequate. See id. at 30–32. North Carolina further argues that N.C. Gen. Stat. § 14-202.5 is narrowly tailored because it prohibits only the accessing of “true” social networking websites. See id. at 26–27. North Carolina argues that Packingham misreads the statute because websites such as nytimes.com are not included within the definition of “social networking websites” as they do not permit users to “link” to friends’ personal pages. See id. at 26. As supporting evidence, the state points to the fact that the law has never been used to convict anyone for accessing a non-social-networking website. See id. at 26–27, 29.
BALANCING THE STATE GOVERNMENT’S INTEREST IN PROTECTING CHILDREN AGAINST SEXUAL OFFENDERS’ RIGHT TO INFORMATION
North Carolina argues that the government’s interest in protecting children from exploitation and abuse by sexual predators is of greater importance than the restriction on information available to registered sex offenders. See Brief of Respondent, North Carolina at 25, 30. The State of Louisiana and twelve other states, in support of North Carolina, argue that N.C. Gen. Stat. § 14-202.5 facilitates this legitimate government interest and that, without this statute, the government’s interest would not be achieved. See Brief of Amici Curiae State of Louisiana and Twelve Other States, in Support of Respondent at 7. North Carolina emphasizes that the effect of sexual abuse on children results in significant and long lasting psychological harm. See Brief of Respondent at 30. Specifically, North Carolina cites the Court in New York v. Ferber, 458 U.S. 747 (1982), to provide examples of the types of long-term harm experienced by sexually abused children: they may “be unable to develop healthy affectionate relationships in later life, have sexual dysfunctions, and have a tendency to become sexual abusers as adults.” See id. North Carolina argues that the statute makes it more difficult for sexual offenders to sexually exploit children because it makes obtaining the information sexual offenders use to commit their crimes more difficult. See id. at 31. Specifically, North Carolina explains that sexual offenders gain information about their victim’s likes, dislikes, home, school, and day-to-day activities from the information available on social networking websites. See id. at 34.
On the other hand, the National Association of Criminal Defense Lawyers (“NACDL”), in support of Packingham, argues that N.C. Gen. Stat. § 14-202.5 imposes broader restrictions than necessary to advance the state government’s interest in protecting children. See Brief of Amicus Curiae National Association of Criminal Defense Lawyers (“NACDL”), in Support of Petitioner at 15. According to the NACDL, the North Carolina statute affects non-threatening conduct that is in no way related to the state government’s concern such as “an innocent exercise of free expression and religious liberty on Facebook.” See id. at 14. The Electronic Privacy Information Center (“EPIC”), also in support of Packingham, contends that the statute does not allow registered sex offenders to visit any part of any website that allows minors to register online. See Brief of Amici Curiae Electronic Privacy Information et al., in Support of Petitioner at 8. EPIC argues that the statute does not differentiate between the types of ideas or news sex offenders may obtain but simply denies access to expansive amounts of protected expression. See id. at 13. EPIC argues that this limitation on the sex offender’s right to the information and ideas available on websites violates the sex offender’s First Amendment rights by dictating what information the sex offender may or may not access. See id. at 8. EPIC notes that the Court in Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982) found that “[t]he right to access information ‘is an inherent corollary of the rights of free speech and press.’” See id. at 10.
WHETHER STATE LEGISLATURE OR FEDERAL COURTS SHOULD INTERPRET STATE’S STATUTES
The Council of State Government, in support of North Carolina, argues that Supreme Court precedent calls for respect for and deference to a state’s statutes and the state’s interpretation of those statutes. See Brief of Amici Curiae Council of State Governments et al., in Support of Respondent at 17. The Council of State Government cites the Court in Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), when it argues that “[f]ederal courts lack competence to rule definitively on the meaning of state legislation,” and “federal courts should hesitate to conclude that ‘[a State’s] Executive Branch does not understand state law.’” See id. Louisiana argues that the state legislature is in a better position than the Court to evaluate and respond to the issues faced by the state. See Brief of Louisiana and Twelve Other States at 8. Louisiana argues that North Carolina’s statute serves the state’s governmental interest of protecting children given sex offenders’ likelihood of repeating their offense and victimizing children on social media. See id. at 9
The NACDL, in support of Packingham, argues that state statutes restricting the actions of and opportunities available to individuals with a criminal record should be subject to checks by the Court to make sure that they do not restrict constitutional rights and liberties. See Brief of NACDL at 6, 16. The NACDL contends that these collateral consequence laws often deprive convicted individuals of fundamental rights without a sound reason. See id. at 5. According to the NACDL, these laws affect “virtually every aspect of human endeavor, including employment and licensing, housing, education, public benefits, credit and loans, immigration status, parental rights, interstate travel, and even volunteer opportunities.” See id. at 6. The NACDL argues that these collateral consequences can greatly affect individuals reentering society. See id. at 7. The NACDL further argues that the criminal sentencing process punishes wrongdoing; therefore, collateral consequences should not be imposed unless the sentencing process is found to be lacking in some way. See id. at 9.
- Jacob Sullum, SCOTUS Will Consider Challenge to Ban on Social Media use by Sex Offenders, Reason (Oct. 31, 2016).
- Eugene Volokh, Supreme Court agrees to consider N.C. ban on sex offenders' access to most prominent social networks, The Washington Post (Oct. 28, 2016).
- Mark C. Fleming, et al., Packingham v. North Carolina, CATO Institute (Dec. 22, 2016).