Last month, a 2008 North Carolina law which prevented registered sex offenders from using social media websites, was struck down by the State Court of Appeals. The law, which was enacted as part of the Protect Children from Sexual Predators Act, provided in 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.
In this instance, defendant Lester Packingham was registered as a sex offender in 2002, and, after the passage of the above law, was recognized by a law enforcement officer on Facebook. After a jury trial, Packingham was convicted, and sentenced to 6-8 months imprisonment, and a year of supervised probation. He appealed, claiming that the statue violates the First Amendment, and is “overbroad, vague, and not narrowly tailored to achieve a legitimate government interest.” In its opinion, the Court of Appeals first reminds us of the standard of review:
Content-neutral regulations are subject to intermediate scrutiny: they must be both “narrowly tailored to achieve a significant governmental interest” and “leave open ample alternative channels for communication of the information.”
While “protecting minors from predatory behavior by sex offenders on the internet” is unquestionably a significant governmental interest, it’s the words “narrowly” and “tailored” which are more problematic. The court agrees with defendant’s contention that the statute is not narrowly tailored 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.
It is observed that, when enacting the statute, the state legislature sought to regulate the online behavior of
recidivists, persons who commit aggravated offenses, and for a subclass of highly dangerous sex offenders who are determined by a sentencing court with the assistance of a board of experts to be sexually violent predators.
Yet the statute did not contain this kind of limitation, and instead applied to all registered sex offenders, and that’s a problem. Additionally, defendant contends that the statute “arbitrarily prohibits a broad scope of internet activity”, and the court agrees with this too, observing that the statutory definition of “social networking Web site[s]” is too vague.
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.
Ultimately finding that the law “is not narrowly tailored, is vague, and fails to target the “evil” it is intended to rectify”, the court strikes it down, and vacates Packingham’s conviction.