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, WRAL.com, Glassdoor.com, 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.