by Matt Clarke

In an opinion handed down on November 6, 2015, the Supreme Court of North Carolina upheld a state law banning registered sex offenders from accessing commercial social media websites on the Internet.

Lester Gerard Packingham, a registered sex offender (RSO), was convicted of accessing commercial social media in violation of N.C.G.S. § 14-202.5. He had established a Facebook profile under a pseudonym which the police discovered by checking facial images. He appealed.

The court of appeals held that the statute violated the state and federal constitutions' protection of free speech both as applied to Packingham and on its face. Specifically, the court held that "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 communications and expressive activity unrelated to achieving its purported goal" of protecting children. The state petitioned the Supreme Court of North Carolina for discretionary review.

Using twisted reasoning to depict the statute as one regulating conduct (accessing a website) with only an incidental effect on free speech, the Supreme Court held that the regulation of speech in the statute was content-neutral and the justification for the statute--protecting minors from RSOs--was unrelated to any speech on a regulated site. Bizarrely, the court seems to hold that a statute specifically prohibiting RSOs from engaging in communication about sex with minors on social media websites would be subject to greater scrutiny than one prohibiting them from accessing the websites.

The court then held that the statute was narrowly tailored to prevent sex offenders from gathering information about potential victims from commercial social websites. They could still exercise free speech as they are permitted to access websites that are limited to adult users, use websites that "provide only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or messenger or message board platform" or has facilitating commercial transactions involving goods or services between its members or visitors as its primary purpose. Therefore, the statute was not unconstitutional on its face.

In determining whether the statute was unconstitutional as applied to Packingham, the court first held that the statutory restrictions on his "right to speech on Facebook, while incidental, are not trivial." It noted that Packingham was convicted of a sex crime against a child, had a notification of the statute in his home and had operated under a pseudonym on Facebook. It then held that the burden imposed on him was not greater than necessary to further the governmental interest of protecting children from RSOs.

The court also held that the statute was neither unconstitutionally overbroad nor vague. The opinion of the court of appeals was reversed. One justice wrote a dissenting opinion that was joined by another justice. Packingham was represented by appellate defender Glenn Gerding. See: State v. Packingham, N.C.S.Ct., No. 366PA13.

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