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High court strikes sex offender social media ban

David Donovan//June 22, 2017

High court strikes sex offender social media ban

David Donovan//June 22, 2017

In one of its first efforts to address the relationship between the First Amendment and the modern internet, the U.S. Supreme Court on June 19 unanimously struck down a North Carolina statute that barred convicted sex offenders from accessing social media sites like Facebook and Twitter.

The 2008 law had made it a felony for registered sex offenders “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.”

Justice Anthony Kennedy, writing for the court, said that the law’s sweepingly broad language prohibited too much constitutionally protected speech to pass muster under the First Amendment and could potentially encompass everything from e-commerce websites to news outlets.

“By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge,” Kennedy wrote

“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 and the four justices who joined his opinion rejected the state’s argument that the law deals with the virtual world in the same way that states keep sex offenders out of playgrounds and other places children visit, holding that no previous court opinion had ever approved of a statute as broad in its reach. The majority said that states remained free to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.

Justice Samuel Alito wrote a concurring opinion placing even greater emphasis on this point, writing that the “fatal problem for [the law] is that its wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child.”

In response to the ruling, the state’s Attorney General said that his office would work within the parameters of the court’s ruling to protect minors online.

“The Supreme Court recognized that protecting children from sexual abuse is critical. It invited the state to pass a law that is more effective at protecting children online from registered sex offenders and is within the bounds of the First Amendment,” Attorney General Josh Stein said in a written statement. “I have directed my staff to draft such a bill for the General Assembly’s consideration.”

The decision overturns the conviction of Lester Packingham Jr., a registered sex offender who had maintained a Facebook account under an assumed name. It also sets what figures to be an important precedent and adds to a body of recent decisions from the Supreme Court offering broad protections for free speech. On the same day that the Court handed down its ruling in Packingham’s case, it ruled that a federal law denying trademark protection for names deemed offensive or derogatory also violated the First Amendment.

Glenn Gerding of the Office of the Appellate Defender in Durham represented Packingham in the state appellate courts and was part of the defense team before the Supreme Court. Gerding said he thought the decision was a groundbreaking opinion in regard to use of the internet, and social media in particular, noting that it had been almost 20 years since the Supreme Court had talked about the First Amendment’s application on the internet in such a broad way.

“They took the opportunity to say that the First Amendment applies to the internet and social media, just like in parks and town squares,” Gerding said. “So I think it’s more significant than just recognizing that sex offenders have First Amendment rights. I think it’s recognition that the internet and the use of social media are fully protected under the First Amendment.”

Louisiana is the only other state with a law similar to North Carolina’s, although the Louisiana law applies only to people convicted of sex crimes with children, according to a legal brief the state filed with the Supreme Court. But many states have laws that require sex offenders to provide information about their internet use to authorities. Separately, many states limit internet use as a condition of parole or probation.

In his brief, Packingham asserted that the state had prosecuted over 1,000 people for violating the law.

The Associated Press contributed to this report.

Follow David Donovan on Twitter @NCLWDonovan


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