In yet another part of the country, an appellate court has ruled that a law banning sex offenders from accessing and using social networking sites violates the First Amendment’s free speech guarantees.
After rulings in Nebraska, Louisiana, California and Indiana, the North Carolina Court of Appeals1 ruled yesterday [PDF] that that State’s ban on sex offenders accessing Facebook and the Google and My____2 is unconstitutional.
In 2008, before Facebook and Twitter were even a thing, NC passed a law which provided in relevant part that:
It is unlawful for a sex offender who is registered in accordance with Article 27A of Chapter 14 of the General Statutes 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.
The statute then goes on to define “commercial social networking website”. So of course when, in 2010, officers went trolling investigating on Facebook and Twitter, which was totally for work you guys and not to update and check obsessively on that girl who one time ditched them for that asshole from accounting, they found that Packingham3 had set up shop on these “social media commercial networking Web sites” and was apparently spamming teenage girls to death with ads for Viagra or something doing nothing. But his mere presence on Facebook was a violation of the statute itself, so he was arrested, tried, convicted and sentenced to a suspended sentence.
After generally stating with approval the other state cases I listed above, the opinion agreed with the defendant that the statute is not:
narrowly tailored, in part because it treats all registered sex offenders the same, regardless of the offense committed, the victim’s age, whether a computer was used to facilitate or commit the offense, the likelihood of reoffending, and regardless of whether the person has been classified as a sexually violent predator. It burdens more people than needed to achieve the purported goal of the statute.
The Court then agrees that the statute itself is overbroad. Criminal statutes are Constitutional when they give people adequate notice of the prohibited conduct. This statute does not:
The construction of N.C. Gen. Stat. § 14-202.5(b) lacks clarity, is vague, and certainly fails to give people of ordinary intelligence fair notice of what is prohibited. We assume that persons of ordinary intelligence would likely interpret the statute as prohibiting access to mainstream social networking sites such as Facebook.com and Myspace.com.
However, the ban is much more expansive. For example, while Foodnetwork.com contains recipes and restaurant suggestions, it is also a commercial social networking Web site because it derives revenue from advertising, facilitates the social introduction between two or more persons, allows users to create user profiles, and has message boards and photo sharing features. Additionally, the statute could be interpreted to ban registered sex offenders from accessing sites such as Google.com and Amazon.com because these sites contain subsidiary social networking pages: they derive revenue from advertising; their functions facilitate the social introduction of two or more people; and they allow users to create personal profiles, e-mail accounts, or post information on message boards.
Foodnetwork? Really? Isn’t Paula Deen still visible in the rear-view mirror? Anyway4.
You don’t need me to spell it out for you that I think this is the right decision. While One Must Always Protect The Children, we shouldn’t do so at the expense of basic freedoms and liberties. This is an excellent example of everything I constantly say on this blog: that the rights and freedoms and liberties guaranteed by the Constitution are guaranteed to us all, regardless of whether we are a flawless upper-class white male from the ‘burbs, or a dude named Packingham who has been convicted of taking indecent liberties with a child. Because, when it comes to the First Amendment, there’s no functional difference between Packingham and you. So if you’re raise your voice against Packingham’s rights, you’re doing so at your own expense.
