Friday, October 28, 2016
The United States Supreme Court has granted certiorari in Packingham v. North Carolina involving the constitutionality of a state statute, NCGS § 14-202.5, making it a felony for registered sex offenders to access certain commercial social networking sites.
In its opinion the Supreme Court of North Carolina, reversing the court of appeals, concluded that the statute was constitutional on its face and as applied to Packingham, a registered sex offender, who had a Facebook.com page.
The opinion for the majority by Justice Robert Edmunds, found that the North Carolina statute was content-neutral. The court reasoned that the "limitations imposed by the statute are not based upon speech contained in or posted on the site," but simply on the character of the site as one that is available for use by minors. Thus the court applied "intermediate scrutiny" under United States v. O'Brien (1968), with the O'Brien factors. Perhaps most interesting is the court's analysis of the availability of ample alternatives for expression:
On the as-applied challenge, the court similarly rejected Packingham's First Amendment claims, finding that the incidental burden on Packingham's speech was no greater than was essential to the furthering the government's interest in protecting children. Similarly, the court concluded that the statute was not overbroad and that Packingham could not raise a vagueness challenge given that he was within the purview of the statute.
The dissenting opinion, authored by Justice Robin Hudson and joined by Justice Cheri Beasley, contended that O'Brien was not the correct standard because the statute "primarily targets expressive activity usually protected by the First Amendment," and should be more properly considered as content-based under Reed v. Town of Gilbert. However, Justice Hudson argued that even under O'Brien, the statute burdened substantially more speech than necessary" because it sweeps too broadly in the sex offenders it includes and in the speech (activity) it prohibits, including social networking sites that allow minors (such as newspapers and Amazon).
Other courts have ruled on the issue of sex offender bans from social media. Recall the Seventh Circuit's opinion finding Indiana's sex offender ban from social media unconstitutional. And also recall the 2012 decision by a federal district judge finding Louisiana's broad prohibition unconstitutional under the First Amendment. If one were to make a wager, it would seem that the North Carolina statute would similarly be declared unconstitutional.
[image via -cropped]