SCOTUS to Rule on Social Media Rights of Sex Offenders

By Jace Brown (Rutgers Law Student)

To what extent can states regulate the use of social media by registered sex offenders, without infringing their First Amendment free speech rights?  That is the issue to be decided in Packingham v. North Carolina, 777 S.E.2d 738 (N.C. 2016), which has recently been granted certiorari by the Supreme Court.

In 2010, convicted sex offender Lester Gerard Packingham had just beaten a traffic ticket in court and celebrated on his Facebook page saying “God is good! . . . Praise be to GOD, WOW! Thanks JESUS!”  For this post, Packingham was sentenced to 6–8 months’ imprisonment, suspended, and was given 12 months of supervised probation.  As a convicted sex offender, Packingham’s Facebook post violated N.C. Gen. Stat. § 14-202.5, which prohibits all sex offenders in North Carolina from knowingly accessing certain social media websites in which children are permitted to create or maintain personal web pages.  The websites prohibited under the statute’s definition include Facebook, Twitter, LinkedIn, MySpace, Pinterest, Instagram, Reddit, Google+, and many others.  Packingham appealed the conviction, alleging that the statute violated his First Amendment free speech rights.

A unanimous appellate court agreed with Packingham, and held that N.C. Gen. Stat. § 14-202.5 violated the First Amendment, and was impermissibly vague.  The court noted that the statute was “content neutral” and therefore applied intermediate scrutiny.  The Supreme Court of North Carolina, however, in a 4-2 decision, reversed the appellate court and found that the statute was constitutional.  Applying intermediate scrutiny, the court held that the statute was sufficiently justified and that it was narrowly tailored, so that the incidental First Amendment burden imposed upon defendant by the statute was not greater than necessary.  Moreover, the court held that the statute left open “ample alternative channels for communication,” such as the Paula Deen Network,,, and Shutterfly.  On October 28, 2016, the United States Supreme Court granted certiorari.

Other courts that have considered the issue have found similar statutes to be unconstitutional. In fact, the statutes examined in those courts—the Seventh Circuit, District of Nebraska, and Middle District of Louisiana—were actually narrower than the statute in North Carolina, and were nevertheless found to be unconstitutional.  The statutes in those cases only applied to a certain subset of sex offenders, those that had been convicted of offenses targeting minors.  In contrast, the North Carolina statute applies to all sex offenders.

The outcome of the Packingham case has significant First Amendment implications.  The North Carolina statute is meant to prevent communications between sex offenders and minors but its broad sweep restricts substantial protected speech.  The websites that are affected by the statute are widely utilized in the lives of everyday Americans and some of them, such as Facebook and Twitter, provide a substantial platform for which users to express themselves.

One of the central purposes of the First Amendment is to protect the speech of disfavored minorities—a category which certainly includes sex offenders.  Though there is—as Packingham himself concedes—a substantial government interest in preventing convicted sex offenders from communicating with minors, the practical effect of the North Carolina statute is to prevent sex offenders from communicating with not only minors, but the rest of the world as well.

Unquestionably, the state of North Carolina has the right to restrict the First Amendment rights of convicted sex offenders.  It is no different than the right of states to take away a felon’s constitutional right to vote or right to possess a firearm.  But the statute at issue here is far too broad and imposes a substantial infringement on First Amendment speech.  To survive intermediate scrutiny, North Carolina must show that the statute is narrowly tailored and that it leaves open ample alternatives for communication.  But proscribing the use of nearly all social media websites to all sex offenders within the state surely cannot meet this test.  As the Seventh Circuit noted in its case, the statute amounts to what is essentially a complete “social media ban.”  Following the lead of the other jurisdictions, the Supreme Court will almost certainly find that North Carolina’s statute is unconstitutional.

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The $2.2 Million Lawn Sign and the First Amendment

By Christopher J. D’Alessandro  (Rutgers Law Student)

It’s difficult to imagine how a political lawn sign could come with a price tag of $2,263.489.  What could make a flimsy cardboard sign for a Paterson, New Jersey mayoral candidate warrant such an astronomical price?  Well let’s do a simple calculation and see how the variables add up:

1 political lawn sign + employer retaliation – common sense + hubris ÷ SCOTUS = $2,263,489.

From the 30 years of Frank Hague’s political machine, to Jim McGreevy’s career crash and burn in 2004 and most recently Chris Christie’s Bridgegate scandal, New Jersey holds a storied place in the chronicles of political intrigue.  New Jersey is so steeped in political corruption, it has been described disparagingly as the “Soprano State,” a nod to the notorious crime syndicate of HBO fame.  Political intrigue, dirty tricks and retaliation permeate municipal government in New Jersey, and politically unfaithful municipal police officers often find themselves the target of a city hall Machiavelli.

Unsurprisingly, a review of New Jersey police employment lawsuits finds a disturbingly familiar fact pattern:  (1) constitutionally protected political speech by an officer, (2) followed by disciplinary action from politically opposed superiors, (3) spawning legal action by the aggrieved officer alleging retaliation.   Most actions allege retaliation for the officer’s critical speech directed at real, or perceived political opponents.  What may surprise you to learn, is suits filed by police officers in New Jersey against their employer (and often each other) contribute to litigation costs far surpassing those for defending against actions brought by the public.  The facts in Heffernan’s case show the City of Paterson is not immune to this costly phenomena.

In a 2003 article reporting intense acrimony between the police department and newly elected mayor Joey Torres, the New York Times described Paterson as a “post-industrial poster child of a city legendary for its bare-knuckle style of labor dealings.

In 2006, Heffernan was a Detective assigned to the office of Chief James Wittig, who in turn reported directly to Paterson Mayor Joey Torres.  Paterson’s 2006 mayoral campaign was tense, with Torres challenged by former Police Chief Lawrence “Larry” Spagnola, who himself had recently concluded a bitter and public legal feud with Torres.  Setting a political collision course, Spagnola’s successor Wittig was a Torres supporter and appointee, while Detective Heffernan was a close friend of Spagnola.

While off duty on April 13th, 2006 Heffernan visited Spagnola campaign headquarters to retrieve a “Spagnola for Mayor” lawn sign for his mother.  Observed by a detective assigned to mayoral security, Heffernan’s visit was promptly reported to Torres and Wittig.  The following day, Wittig demoted Heffernan to patrolman and assigned him to a walking beat on the graveyard shift.  Paterson claimed this personnel action was legitimately based on Heffernan’s “overt involvement in a political election,” however Heffernan viewed these materially adverse employment actions as retaliation for perceived support of Spagnola’s mayoral run.  Heffernan brought suit in federal court against the City of Paterson under 42 U. S. C. §1983 alleging the demotion and transfer were retaliatory acts in violation of his First Amendment right to free association and speech.
Rather than moving directly to the Supreme Court decision on this matter, a discussion of the lower court proceedings will help us understand why Heffernan v Paterson is a rare, yet important case.

Heffernan initially prevailed at trial with the Federal District Court awarding him $105,000 in damages based on the freedom of association claim.  (Reader, pause and take note that had Paterson let this matter rest here, the sign would have only cost taxpayers around $150k.)  On retrial, Paterson was granted summary judgement against Heffernan, the trial judge ruling Heffernan had “failed to produce evidence that he actually exercised his First Amendment rights, and . . . was foreclosed from seeking compensation . . . for retaliation based on . . . perceived exercise of those rights.”

The 3rd Circuit affirmed the trial court ruling on appeal, delivering a decision described by critics such as Gilad Edelman of New Yorker Magazine as an “absurd First Amendment Doctrine.”  The 3rd Circuit effectively ruled retaliation taken against an employee based on political speech is not actionable, if the employer made a factual mistake about the political nature of the behavior.

As Edelman points out, this decision set an absurd precedent where retaliation could be meted out with impunity based on perceived political associations, if not aimed at intentional political activity. Edelman further argues that under this doctrine, a truck driver delivering the political sign could be punished, as could the printer of the sign, or a non-political employee who merely attended a campaign event to enjoy the entertainment.

It is unsurprising Heffernan sought to bring his case before the Supreme Court, but it is surprising they agreed to hear it.  How many cases beginning with ad hoc disciplinary action delivered by the stroke of a police chief’s pen, find their way to the highest court in the land? Heffernan v City of Paterson may be the first and as Justice Alito mentioned, cases such as Heffernan v City of Paterson are likely to be rare.

The question before the Court was whether “the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.”   Rare or not, the Court’s decision in this case could hold vast import for public employees.

In a victory for Heffernan, the Court reversed and remanded, holding that “When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and §1983 even if, as here, the employer’s actions are based on a factual mistake about the employee’s behavior.”

Guiding the Court’s decision was their assumption “. . . the activities that Heffernan’s supervisors mistakenly thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish.”  Thus ended the absurd 3rd Circuit notion that government employers can retaliate against their employees for protected speech, as long such retaliation is only based on perception of, rather than actual constitutionally protected behavior.

Following the Supreme Court decision, Paterson settled with Heffernan for $1.6 million.  Including the settlement, Paterson had spent over $2,263,489 in their failed defense of the demotion and transfer of this low ranking police officer.  The Paterson City Council initially rejected the settlement, but common sense prevailed and the council ultimately voted to accept.  The matter closed with the tab at $2,263,489, but the true costs of Paterson’s abridgement of Heffernan’s First Amendment rights will never be known, since related matters such as the 2010 ouster of Wittig and his $473,000 severance package could rightly be added to the tab.

So now that we reached the end of this tale of municipal intrigue, it’s time for the Reveal. What in fact, is a $2.2 million lawn sign made of?  Well, it’s anticlimactic really, because here we find no masterpiece ready to be hung on the walls of the Louvre, nor some treasure encrusted with gold and jewels, but rather art brut crudely shaped from good ole’ New Jersey political hubris.  In the words of Paterson Councilman Adre Sayegh, “This is all for a lawn sign. Spin it anyway in which you want, but a lawn sign is going to cost us over $2.2 million.”

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Lastowa Short-Form Writing Competition – SUBMISSIONS DUE 3/1/17

The Rutgers Institute for Information Policy & Law is pleased to announce the Lastowka Short-Form Writing Competition. Open to Rutgers students and recent graduates (class of 2015), the award will be given to an entry of 500-1,500 words on a topic of intellectual property or information policy more broadly.  

Professor Greg Lastowka (1968-2015) will be remembered for his inquiryinto how people innovate, create, and produce cultural capital though playful exploration. His pathbreaking scholarship in the areas of copyright, trademark, cyberproperty, video games, and virtual worlds forged new fields and impacted multiple areas of IP and other law.

The Lastowka Writing Competition, accompanied by a $500 prize, will be awarded to a short piece in the form of a blog post or other related entry that addresses a cutting-edge issue and offers a new, interesting, and well-reasoned perspective on an area of IP or information policy. Entries should use blogpost formatting, including hyperlinks to legal sources, press, and other commentary in lieu of footnotes. Graphics and other visuals are encouraged. Qualifying entries will be posted on the RIIPL blog. Examples of student-written blogposts can be found on  The winner of last year’s competition was Carl J. Minniti.  

Entries should be sent by March 1, 2017 to ude.sregturnull@lpiir

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® Professor McNichol is inaugurating a skills course for Spring 2017 on one of the most common trademark practice situations:  lawyers have to offer a reasoned opinion on whether a business’s proposed trademark can be used.  In order to support the simulations, he has negotiated free access to one of the principal commercial trademark clearance databases.  Rutgers Law students will have an unusual opportunity to interact with real trademark search functions and develop data-based opinions.   

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