Public Safety & Justice

U.S. Supreme Court Overrules North Carolina Law That Kept Sex Offenders Off Facebook

by | June 19, 2017

By Anne Blythe

The U.S. Supreme Court has overturned a North Carolina law prohibiting registered sex offenders from using Facebook or other social networking sites that minors can join.

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 raised 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.

"This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet," Justice Anthony Kennedy wrote in the majority opinion. "As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium."

The justices sent the case back to the state Supreme Court to reverse its earlier decision.

"In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights," Kennedy's ruling states. "It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals -- and in some instances especially convicted criminals -- might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives."

The state Court of Appeals ruled the law was too broad and restricted Parkingham's free speech. The N.C. Supreme Court overturned that ruling, saying in a 4-2 decision 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."

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 Roy Cooper, the state Attorney General at the time, advocated for many years. Cooper was elected governor last fall.

Packingham argued that prohibiting him from using social media sites is a violation of his rights to "free speech, expression, association, assembly and the press under the First and Fourteenth Amendments."

Packingham was convicted in 2002 of taking indecent liberties with a child.

In 2010, Durham police began investigating Myspace and Facebook profiles to enforce the law. Investigators said they found a picture of Packingham on Facebook and determined he created the profile page, according to court documents. His post was about a court's resolution of a traffic ticket he had received. "No fine. No Court costs. No nothing. Praise be to God. Wow. Thanks, Jesus," Packingham's post stated.

Packingham was convicted in May 2012 of violating the 2008 social media ban and received a suspended sentence and probation.

The 2008 legislative package came about at a time that state attorneys general across the nation were raising concerns about social media sites such as Facebook and Myspace, hoping to protect users from sexual predators using the networks.

Though many of those sites now are more widely used by adults than children, the North Carolina law makes it illegal for a registered sex offender to access a website where he or she knows minors have personal web pages.

"Even with these assumptions about the scope of the law and the State's interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens," Kennedy's ruling states. "Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind."

Though the ruling was unanimous, with new Justice Neil Gorsuch not participating, Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas cautioned that Kennedy's "loose rhetoric" could prevent states from taking any measures to restrict convicted sex offenders on the internet.

"This language is bound to be interpreted by some to mean that the states are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sires, including for example internet dating sites," Alito wrote for the three justices.

Many states have laws that require sex offenders to provide information about their internet use to authorities. States also limit internet use as a condition of parole or probation.

Louisiana has a law similar to North Carolina's, but unlike the N.C. law just struck down, Louisiana's applies only to people convicted of sex crimes with children, according to a document filed in Supreme Court.

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.

Though the law makes exceptions for websites that provide narrow services such as email, the three-judge N.C. appeals court panel that ruled in the case said it could prohibit a registered sex offender from accessing Google, Amazon or even a cooking TV channel website because the sites provide secondary social networking forums.

North Carolina's sex offender laws require people convicted since 1996 of sexually violent offenses and specific crimes against children to register with the sheriff's office in the counties where they live. Those on the registry may not live close to schools or daycares. They are barred from working with minors and visiting certain places where children are likely to be present.

In 2013, Gerding said one of his clients had not been able to attend his child's T-ball games because of the restrictions. The client's wife had planned to go to the game and use Skype so her husband could watch without being on the premises, but a sheriff told him that would violate the 2008 law.

Gerding, now an appellate defender with the state Office of the Appellate Defender, said he spoke with Packingham on Monday after the high court's ruling.

"He was excited to hear the results and glad the court respects the First Amendment rights of all people," Gerding said.

(c)2017 The News & Observer (Raleigh, N.C.)

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