North Carolina Supreme Court Rejects 1st Amendment Challenge to Social Networking Ban for Sex Offenders

The North Carolina Supreme Court has rejected a 1st Amendment challenge to a provision of state law that forbids convicted sex offenders from accessing most commercial social networking websites, such as State v. Packingham, 2015 WL 6777114 (Nov. 6, 2015).


Lester Packingham, a convicted sex offender, established a page using the name J.R. Gerrard. A Durham Police Department officer investigating whether any convicted sex offenders were on recognized Packingham from his profile photo, triggering a search of Packingham’s residence that turned up a copy of a notice of “Changes to North Carolina Sex Offender Registration Laws” that specified the kind of social networking sites prohibited to sex offenders that he had signed, so he could not credibly raise a procedural due process argument that he was unaware of the prohibition. The prohibition specifically extends to any commercial social networking website to which minors may subscribe. fits within this description.


Packingham was indicted for violating the statute. The trial court denied his motion challenging the facial constitutionality of the provision, finding that it was constitutional as applied to him. He was then sentenced to jail time and probation. The court of appeals reversed, finding that intermediate scrutiny applied to this speech-targeted statute, and that the statute was too vague to withstand review by failing to “target the ‘evil’ it is intended to rectify” because of the sweeping prohibition extending to all social networking websites.


The Supreme Court vote was 4-2 to reverse, with one member not participating. Writing for the court, Justice Robert Edmunds held that the statute was a regulation of conduct, not speech, and that the legislature had a rational basis for enacting it in order to protect children from being approached by sex offenders through social networking websites. He pointed out that a sex offender was not barred from using the internet as a whole, and that there were plenty of websites apart from commercial social networking websites where he could express his views and interact with others.


Justice Robin Hudson, dissenting, agreed with the court of appeals that the statute regulates speech and fails to meet the test of heightened or strict scrutiny. Justice Cheri Beasley joined Hudson’s opinion in dissent.


Packingham is represented by an appointed Appellate Defender, Glenn Gerding. Perhaps the ACLU or a similar free-speech organization will step up and assist Packingham in seeking United States Supreme Court review.  The dissent makes cogent arguments about why the majority decision misses the mark on 1st Amendment grounds.

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