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Liberty Counsel Revives Assault on New Jersey Conversion Therapy Ban

Posted on: February 12th, 2019 by Art Leonard No Comments

Usually the U.S. Supreme Court’s refusal to review a lower court decision puts an end to the case, but Liberty Counsel, a right-wing religious group that represents psychologists in New Jersey who want to provide conversion therapy to “change” people from gay to straight, has seized upon an opening created by a U.S. Supreme Court decision from last June to revive their constitutional attack on New Jersey’s law prohibiting licensed professional counselors from providing such therapy to minors.  On February 11, the organization petitioned the Supreme Court to effectively reopen the case.  King v. Governor of New Jersey & Garden State Equality.

Governor Chris Christie signed the measure into law on August 19, 2013.  Liberty Counsel promptly filed suit on behalf of two psychologists and their patients, as well as the National Association for Research and Therapy of Homosexuality (NARTH), and the American Association of Christian Counselors, claiming that the measure violated the constitutional rights of plaintiffs.

U.S. District Judge Freda L. Wolfson granted the state’s motion for summary judgment, finding no constitutional violation (see 981 F. Supp. 2d 296), and the plaintiffs fared no better before the U.S. Court of Appeals for the 3rd Circuit, based in Newark, which upheld Judge Wolfson’s ruling on September 11, 2014 (see 767 F. 3d 216).

Wolfson found the measure to be a regulation of professional conduct, only incidentally affecting speech.  As such, she held that the challenge should be rejected as long as the legislature had a rational basis for enacting the law.  She found that the legislative record about the inefficacy and harm of such therapy was sufficient to meet the test.

On appeal, the three-judge panel disagreed with Judge Wolfson to the extent of finding that the ban as applied to “talk therapy” is a content-based regulation of speech, not just a regulation of conduct with an incidental effect on speech.  But the appeals court unanimously rejected the plaintiffs’ argument that the statute was consequently subject to the strict scrutiny test, under which it would be presumed to be unconstitutional unless New Jersey could prove that it was narrowly tailored to achieve a compelling state interest.

Instead, wrote Circuit Judge D. Brooks Smith for the panel, the speech involved in providing conversion therapy is “professional speech,” subject to state regulation.  As such, the court ruled, the state could prevail under the less demanding “heightened scrutiny” test by showing that the ban substantially advanced an important state interest, and that the legislative record was sufficient to uphold the law.

Liberty Counsel petitioned the Supreme Court for review.  That petition was denied on May 4, 2015 (see 135 S. Ct. 2048).  The Supreme Court also denied a petition to review a similar decision by the San Francisco-based 9th Circuit Court of Appeals in a case brought by, among others, Dr. David Pickup, in which that court rejected a similar challenge to California’s ban on conversion therapy.  (Dr. Pickup is also a plaintiff in the case challenging a conversion therapy ban in Tampa, Florida, about which we blogged earlier.)  Judge Wolfson relied on the 9th Circuit’s ruling in finding that conversion therapy statutes can be upheld as within the traditional state power to regulate the conduct of licensed professionals.

More than a dozen jurisdictions have since passed such bans, and attempts to challenge them in the courts have similarly been unsuccessful.  But the Supreme Court may have upset this trend by its ruling on June 26, 2018, in National Institute of Family and Life Advocates (NIFLA) v. Becerra, 138 S. Ct. 2361.  NIFLA challenged a California law that required licensed pregnancy-related clinics to inform their clients about the availability of publicly-funded family-planning services, including contraception and abortions, and non-licensed facilities to provide notices stating that they were not licensed by the state.  The Supreme Court agreed with NIFLA that the statute violated the 1st Amendment protection for freedom of speech by compelling the plaintiffs to speak the government’s message.

In defending the statute, California relied on the conversion therapy decisions from the 3rd and 9th Circuits.  This provoked Justice Clarence Thomas, writing for the 5-4 majority, to reject the idea that “professional speech” in the context of regulated, licensed professions was entitled to any lesser constitutional protection than other speech.  After summarizing these and other cases, Thomas wrote: “But this Court has not recognized ‘professional speech’ as a separate category of speech.  Speech is not unprotected merely because it is uttered by ‘professionals.’  This court has ‘been reluctant to mark of new categories of speech for diminished constitutional protection.’”

Thomas went on to write that there were only two circumstances in which the Supreme Court had provided lesser protection to “professional speech”: “First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech.’  Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech.”

Thus, at least by implication, a majority of the Supreme Court ruled last June that states passing conversion therapy bans will have to meet the demanding strict scrutiny test when they are challenged under the 1st Amendment.  Unless, of course, they can show that this is really a regulation of professional conduct with incidental effect on speech, an approach that worked in the 9th Circuit.  Although Thomas’s comments in NIFLA suggest this may be a difficult task, it is not necessarily impossible.

Reacting to the Supreme Court’s NIFLA ruling, Liberty Counsel jumped into action to try to revive its challenge to the New Jersey law.  First, it filed a Motion with the 3rd Circuit Court of Appeals, demanding that it recall the Mandate it had issued to the District Court in 2014 to dismiss the challenge to the statute.  Liberty Counsel argued that the Supreme Court’s ruling had “abrogated” the 3rd Circuit’s decision, thus the 3rd Circuit should acknowledge that its 2014 ruling was erroneous and correct the situation by “recalling” its Mandate.  Although Liberty Counsel does not explicitly state what would come next, presumably this would mean reversing the District Court’s grant of summary judgment to the state and resetting the case for argument under the strict scrutiny test.  The 3rd Circuit denied this Motion without a hearing or a written opinion.

Undaunted, Liberty Counsel then sought rehearing en banc (by the full 3rd Circuit bench), which was also denied, on November 13, 2018.

Liberty Counsel petitioned the Supreme Court on February 11, arguing that the 3rd Circuit “abused its discretion” by refusing to take action based on the Supreme Court’s “abrogation” of the 3rd Circuit’s prior opinion.  Liberty Counsel cites numerous cases in which it claims federal courts of appeals have “recalled” their mandates from lower courts after a Supreme Court decision in a similar case has rejected the reasoning underlying their earlier decision.  Liberty Counsel argues that the current situation is particularly stark because the Supreme Court has not only rejected the reasoning of the earlier case, but has cited and quoted from the earlier decision while doing so.

On the other hand, Justice Thomas did not use the term “abrogate” and his opinion in NIFLA recognizes that there may be circumstances in which state regulation of professional speech may be constitutional.  The 9th Circuit’s reasoning in the Pickup case, focused on the regulation of professional conduct rather than speech, may be such an instance, and the 3rd Circuit’s case could be reconsidered under such a standard.  In this case, Liberty Counsel may be following the lead of West Publishing Company, which operates the Westlaw legal research system.  If one finds the 3rd Circuit’s decision in Westlaw, one sees, in bold red above the citation of the case, the phrase “Abrogated by National Institute of Family and Life Advocates v. Becerra, U.S., June 26, 2018” and the characterization “Severe Negative Treatment.”

Liberty Counsel’s petition, a bit disingenuously, assumes this means that the New Jersey law is unconstitutional, but all it really means is that the 3rd Circuit applied too lenient a standard in ruling on the case and should have applied the strict scrutiny test to be in line with the Supreme Court ruling in NIFLA.

In its argument to the Supreme Court, Liberty Counsel contends that failing to grant the petition and to require the 3rd Circuit to “recall” its mandate will have harmful rippling effects throughout the nation.  It points to the steady progression of new state and local laws that have been enacted in reliance on the “incorrect” decisions by the 3rd and 9th Circuits, which it asserts will “chill” the ability of conversion therapy practitioners to “offer” this “cure” to their patients.

In January, U.S. Magistrate Judge Amanda Arnold Sansone relied on the Supreme Court’s NIFLA decision in her report recommending that the U.S. District Court issue a preliminary injunction against the application of the Tampa, Florida, conversion therapy ban to practitioners who provide “talk therapy.”  The complaint filed in federal court in Brooklyn last month by Alliance Defending Freedom, challenging New York City’s ordinance, is devised to raise the same arguments.  And it is predictable that either ADF or Liberty Counsel will file suit in an attempt to block the new state law enacted last month in New York raising similar arguments.

Although Liberty Counsel couches its petition as an attempt to have the court settle a dispute among lower courts about the proper way to respond when one of their decisions is substantially undermined in its reasoning by a subsequent Supreme Court ruling in a similar case, it is at heart an attempt to relitigate the question whether conversion therapy practitioners have a 1st Amendment right to ply their trade free of government restrictions.  It is a blatant attempt to get the issue of conversion therapy back before the Supreme Court now that Trump’s appointments have solidified the conservative majority.  And, at that, it is a test of science against homophobia and transphobia.

Supreme Court Will Hear Title IX Transgender Discrimination Case and Case Challenging Social Media Restrictions on Sex Offenders

Posted on: October 30th, 2016 by Art Leonard No Comments

Supreme Court Will Hear Title IX Transgender Discrimination Case and Case Challenging Social Media Restrictions on Sex Offenders

The Supreme Court substantially enlivened its docket for the October 2016 Term on October 28 when it granted petitions for certiorari in Gloucester County School Board v. G.G., No. 16-273, and Packingham v. North Carolina, No. 15-1194.  In Gloucester, a school district in Virginia, obligated not to discriminate because of sex under Title IX of the Education Amendments Act of 1972, seeks review of the 4th Circuit’s decision, 822 F.3d 709 (2016), holding that the district court should defer to the U.S. Department of Education’s interpretation of a regulation on restrooms in educational facilities, 34 C.F.R. Sec. 106.33, that would require the school to let a transgender boy use the boys’ restroom facilities at his high school.  In Packingham, the petitioner seeks to overturn the North Carolina Supreme Court’s decision, 368 N.C. 380, 777 S.E.2d 738 (2015), upholding his conviction for violating North Carolina’s rules governing registered sex offenders by posting a message on Facebook.com celebrating the dismissal of a traffic ticket.  Lester Packingham claims that the broad prohibition of his use of social media violates his 1st Amendment rights.

The Gloucester Case

The Gloucester case was closely watched by LGBT lawyers and legal commentators for presenting the Court with a vehicle to respond to the broader question of whether federal laws prohibiting discrimination “because of sex,” mostly passed many decades ago, can now be construed to forbid gender identity discrimination (and maybe, also, sexual orientation discrimination), despite the obvious lack of intent by the enacting legislators in the 1960s and 1970s to reach such discrimination.  That is, to recur to a question repeatedly raised by the late Justice Antonin Scalia, are we governed by the intentions of our legislators or by reasonable interpretations of the actual texts they adopted in their statutes, or that administrative agencies subsequently adopted in regulations intended to aid in the enforcement of the statutes?  Scalia, who was an ardent foe of using “legislative history” as a method of statutory interpretation, decisively argued that courts should focus on the language of the statute, not viewed in isolation of course but rather in the context of the overall statute (including any declaration of congressional purpose contained in it), and he won unanimous concurrence by his colleagues in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), holding that a man employed in an all-male workplace could maintain an action for hostile environment sexual harassment under Title VII, even though it was unlikely that the enacting Congress in 1964 was thinking about same-sex harassment when it amended Title VII to add “sex” to the list of forbidden grounds for workplace discrimination.  Scalia wrote for the Court that we are governed by the statutory text, and thus Mr. Oncale could maintain his Title VII suit subject to his burden to prove that he was harassed “because of sex” as specified by the statute.  The Equal Employment Opportunity Commission (EEOC) has prominently cited and quoted from Justice Scalia’s Oncale opinion in its federal employment rulings of recent years (Macy, Lusardi, Baldwin) holding that discrimination because of gender identity or sexual orientation is “necessarily” discrimination “because of sex,” even though the 1964 Congress would not necessarily have thought so.  Although Gloucester does not directly involve Title VII, federal courts have generally followed Title VII precedents when they interpret the sex discrimination ban in Title IX, as the 4th Circuit explained in this case.

The controversy arose when fellow students and their parents objected to Gavin Grimm, a transgender boy, using the boys’ restrooms during fall term of his sophomore year, in 2014. The principal of the high school had given Grimm permission to use the boys’ restrooms, after being presented with the facts about Grimm’s transition and his discomfort with continuing to use the girls’ restrooms, since he was dressing, grooming, and – most significantly – strongly identifying as male.  Responding to the complaints, the Gloucester County School Board voted to establish a policy under which students were required to use the restroom consistent with their “biological sex” – the sex identified on their birth certificate – or to use a gender-neutral restroom, of which there were a few in the high school.  Grimm was dissatisfied with this turn of events and enlisted the American Civil Liberties Union (ACLU) of Virginia to sue the school board in the U.S. District Court for the Eastern District of Virginia, in Newport News.  The case was assigned to Senior U.S. District Judge Robert G. Doumar, who was appointed to the district court by President Ronald Reagan in 1981.  The plaintiff was identified in the original complaint as “G.G., by his next friend and mother, Deirdre Grimm,” but Gavin Grimm decided early on to be open about his role as plaintiff and has spoken publicly about the case.  The complaint relied on Title IX as well as the Equal Protection Clause of the 14th Amendment.

Ruling on a motion for a preliminary injunction by the plaintiff and a motion to dismiss by the defendants on September 17, 2015, 132 F. Supp. 3d 736, Judge Doumar found that Grimm could not win a ruling on the merits of his Title IX claim because, in the judge’s view, Title IX regulations expressly allowed schools to maintain separate restroom facilities for boys and girls based on “sex,” and so it was not unlawful for them to require Grimm to use restrooms consistent with his “sex” which, in the school district’s view, was female. He rejected the ACLU’s claim that he should defer to the U.S. Department of Education’s interpretation of the “bathroom regulation,” which was articulated in a letter that the Department’s Office of Civil Rights (OCR) sent in January 2015 as a “party in interest” in response to Grimm’s request for the Department’s assistance in his case.  OCR took the position, consistent with recent developments in sex discrimination law, that Grimm should be treated as a boy under the circumstances because it was undisputed that this was his gender identity, and thus under the regulation he was entitled to use the boy’s restroom, although he could also request as an accommodation to have access to gender-neutral facilities.   To Judge Doumar, the text of the regulation was clear and unambiguous, so the OCR’s attempt to ‘interpret’ the regulation in favor of Grimm’s claim was not entitled to deference from the court.  He wrote that deferring to the position articulated in the letter would allow OCR to “create a de facto new regulation.”   Doumar opined that if OCR wanted to change the regulation, it should go through the procedures set out in the Administrative Procedure Act, a time-consuming process that would result in a new or amended regulation that would then be subject to direct judicial review in the court of appeals.  As to the facts, Doumar referred to Grimm in his opinion as a “natal female” and seemingly was unwilling to credit the idea that for purposes of the law Grimm should be treated as a boy.  To Doumar, the case presented the simple question whether the school district had to let a girl use the boy’s restroom, and under the “clear” regulation the answer to that question was “No.”  While denying the preliminary injunction and dismissing the Title IX claim, Judge Doumar reserved judgment on the Equal Protection Claim.

Grimm appealed to the 4th Circuit, which reversed Judge Doumar in a 2-1 opinion on April 19, 2016.  Where Doumar saw clarity in the regulation, the 4th Circuit majority saw ambiguity, although a dissenting judge sided with Judge Doumar.  Although the regulation clearly said that schools could maintain separate restroom facilities for males and females, it said nothing directly about which restrooms transgender students could use, thus creating the ambiguity.  Unlike Judge Doumar, the 4th Circuit majority was unwilling to accept the School Board’s argument that a person’s sex is definitely established by their birth certificate.  The court took note of the developing case law in other circuits and in many district courts accepting the proposition that sex discrimination laws are concerned not just with genetic or “biological” sex but rather with the range of factors and characteristics that go into gender, including gender identity and expression.  Many federal courts (including several on the appellate level) have come to accept the proposition that gender identity and sex are inextricably related, that gender dysphoria and transgender identity are real phenomena that deeply affect the identity of people, and that transgender people are entitled to be treated consistent with their gender identity.  The court mentioned, in addition to the OCR letter, a December 2014 OCR publication setting forth the same view, which had been published on the Department of Education’s website.  Thus, the School District’s questioning of deference to an “unpublished letter” was not entirely factual, as the Department had previously published its interpretation on its website, and it was relying on an earlier ruling under Title VII by the EEOC in the Macy employment discrimination case, which was issued in 2012.

Having found that the regulation was ambiguous as to the issue before the court, the 4th Circuit relied on Auer v. Robbins, 519 U.S. 452 (1997), a Supreme Court decision holding that an agency’s interpretation of its own ambiguous regulation should be given controlling weight by the court unless the interpretation is “plainly erroneous or inconsistent with the regulation or statute.”  In other words, a reasonable agency interpretation of an ambiguous regulation should be deferred to by the court.  The 4th Circuit panel majority went on to find that the requirements of Auer were met in this case, and remanded the matter to Judge Doumar to reconsider his ruling.  The court’s discussion made clear what direction the reconsideration should take and stressed urgency. Judge Doumar reacted with alacrity, issuing the requested preliminary injunction on June 23.  The School Board sought a stay, which was denied by both Judge Doumar and the 4th Circuit, which also denied a petition for rehearing en banc. With the new school year looming, and desperate to avoid having to let Grimm use the boys’ restrooms during his final year of high school, the School Board petitioned the Supreme Court for a stay of the preliminary injunction, which was granted on August 3 by a vote of 5-3.  See 136 S. Ct. 2442.  Justice Stephen Breyer, taking the unusual step of issuing a brief statement explaining why he had voted for the stay along with the four more conservative members of the Court; said it was an “accommodation.”  There was speculation at the time about what that meant.  In light of the October 28 vote to grant the School District’s petition for certiorari, it probably meant that the four conservatives had indicated they would likely vote to grant a petition for certiorari to review the 4th Circuit’s decision, so in Breyer’s view it made sense to delay implementing the injunction and to preserve the status quo, as the case would eventually be placed on the Court’s active docket for the October 2016 Term (which runs through June 2017).  Breyer was careful to refrain from expressing any view about the merits in his brief statement.  After the School Board filed its petition for certiorari on August 29, the case generated considerable interest, attracting more than a dozen amicus briefs in support or opposition to the petition, including briefs from many states and from members of Congress.  There will undoubtedly be heavy media interest when the parties file their merits briefs with the Court, accompanied by numerous amicus briefs on both sides of the case.

The School Board’s petition to the Court posed three questions, first asking whether the %Auer% doctrine, which some of the Justices have signaled a desire to overrule, should be reconsidered; second asking whether under the Auer doctrine “an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought” merits deference; and third asking whether the Department’s interpretation of Title IX and the bathroom regulation should be “given effect”?  The Court granted the petition only as to the second and third questions, so there are not four members of the Court ready to reconsider Auer, at least in the context of this case.

The remaining questions give the Court different paths to a decision, one of which has minimal substantive doctrinal significance, while others could make this a landmark ruling on the possible application of federal sex discrimination statutes and regulations to discrimination claims by sexual minorities.

The Court might agree with the School Board that no deference is due to an agency position formulated in response to a particular case and expressed in an unpublished agency letter. This could result in a remand to the 4th Circuit for a new determination of whether Judge Doumar’s dismissal of the Title IX claim was correct in the absence of any need to defer to the agency’s interpretation, a question as to which the 4th Circuit majority has already signaled an answer in its discussion of the merits.

Alternatively, and more efficiently in terms of the development of the law, the Court could take on the substantive issue and decide, at the least, whether interpreting Title IX to extend to gender identity discrimination claims is a viable interpretation, in light of the Court’s seminal ruling in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that an employer’s use of sex stereotypes to the disadvantage of an employee’s promotion application was evidence of intentional discrimination because of sex.  It was that ruling that eventually led federal courts to conclude that because transgender people generally do not conform to sex stereotypes concerning their “biological” sex as determined at birth, discrimination against them is a form of “sex discrimination” in violation of such federal laws as the Fair Credit Act, the Violence Against Women Act, and Title VII of the Civil Rights Act.  The EEOC also relied on Price Waterhouse in reaching its conclusion that transgender plaintiffs could assert discrimination claims under Title VII, and the 6th and 11th Circuits have relied on it in finding that claims of gender identity discrimination by public employees should be treated the same as sex discrimination claims under the 14th Amendment’s Equal Protection Clause.

Were the Supreme Court to rule by majority vote that laws banning discrimination “because of sex” also “necessarily” cover discrimination because of gender identity, rather than issuing a narrower ruling focusing solely on Title IX, one could plausibly assert that the inclusion of “gender identity” in the pending Equality Act bill would not be, strictly speaking, necessary in order to establish a federal policy against gender identity discrimination under all federal sex discrimination laws. But it is possible that the Court might write a more narrowly focused decision that would in some way be logically restricted to Title IX claims. At least one district court, in a case involving a transgender student at the University of Pittsburgh, suggested that there were significant enough differences between workplaces and educational institutions to merit a different approach under Title VII and Title IX, especially noting that many of the students affected by Title IX are not adults, while most people affected by Title VII are older, more experienced, and less susceptible to psychological injury in the realm of sexual development.  There was the suggestion that sexual privacy concerns in the context of an educational institution are different from such concerns in the context of an adult workplace.  The Supreme Court has generally preferred to decide statutory interpretation cases on narrow grounds, so it is possible that a merits decision in this case would not necessarily decide how other sex discrimination laws should be construed.

This case will most likely be argued early in 2017, and it may not be decided until the end of the Court’s term in June. Thus, it is possible that Gavin Grimm could win but never personally benefit as a student at Gloucester County’s high school, since he may have completed his studies before the final decision is issued.  But, of course, if he goes on to college, a winning decision would personally benefit him in being able to use men’s restrooms if he attends a college subject to Title IX – unless, given another complication of our times, he decides to attend a religious school that raises theological objections to letting him use such facilities and seeks to rely on the Hobby Lobby decision to avoid complying with Title IX.  We suspect, however, that his higher education would likely avoid that complication!

The Supreme Court has not granted as many petitions as usual thus far this fall, leading to speculation that it is trying to avoid granting review in cases where the justices might be predictably split evenly on the outcome and thus would not be able to render a precedential decision. If the Senate Republicans stand firm on their position that President Obama’s nominee for the vacant seat, U.S. Court of Appeals Judge Merrick Garland, will not be considered for confirmation, it is possible that the Court will have only eight justices when the Gloucester case is argued.  A tie vote by the Court would leave the 4th Circuit’s decision in place, but it would not be precedential outside of the 4th Circuit.  If a newly-elected president nominates a new candidate and the confirmation process takes the average time of several months, a new justice would probably not be seated in time to participate in deciding this case, unless the Court voted to hold it over for re-argument.  (In the past, the Court has sometimes held new arguments in cases that were heard when the Court was shorthanded.  This happened once when Justice Lewis Powell missed many arguments due to ill health, and his colleagues left it up to him whether to participate in those cases, in some instances by holding new arguments.)  This raises the possibility that Grimm’s graduation from high school might be found to have mooted the case, resulting in a dismissal on jurisdictional grounds.  This wouldn’t be an issue, of course, had the lawsuit been filed by DOE and the Justice Department, but where the plaintiff is an individual, his standing remains an issue throughout consideration of the case.

The Packingham Case

In the Packingham case, the North Carolina Supreme Court, reversing a decision by the state’s court of appeals, held that a state law restricting certain on-line social media use by all registered sex offenders was neither facially unconstitutional nor unconstitutional as applied to the defendant, Lester Gerard Packingham.  The North Carolina court, which divided 5-2 on the case, concluded that the statute was a regulation of conduct that incidentally affects freedom of speech, thus subject to heightened but not strict scrutiny, and that it survived such review due to the state’s important interest in protecting minors from sexual exploitation and to the measures taken by the legislature to narrow the scope of on-line communications that would be affected.

Packingham was convicted in 2002 of a sexual offense involving a minor. The opinion for the Supreme Court by Justice Robert H. Edmunds, Jr., does not specify the nature of the offense, but a reference in the dissenting opinion suggests it did not involve violence.  He did, however, have to register as a sex offender.  In 2008, the state legislature amended the sex offender registration law to make it a crime for a registered sex offender 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 included a detailed definition of the characteristics of the kinds of sites that would be prohibited, and explicitly exempted various kinds of websites.  In effect, the ban is on sites where a registered sex offender might be able to identify and communicate directly with minors.  Sites that require individuals to be at least 18 years old in order to be members would not be affected by the ban, for example, and those that limited their services to things like commercial transactions for selling goods were also exempted.  After the law was passed, a written notice was sent to all registered sex offenders in the state advising of these new restrictions to which they must comply.  There was evidence in this case that Packingham received the notice.

In 2010 a Durham police officer began an investigation to determine whether any local registered sex offenders were violating the new law. His investigation uncovered the fact that Packingham was maintaining a facebook.com page under an assumed name and had posted messages to it, most recently a message celebrating his escape from traffic ticket liability.  The investigation did not, apparently, uncover any communications by Packingham to minors using facebook.com.  Packingham was indicted for violating the statute, and moved to dismiss the charges on 1st Amendment grounds.  The trial judge denied the motion, finding the statute constitutional as applied to Packingham while declining to rule on Packingham’s facial challenge to the statute, and he was convicted by a jury and sentenced to 6-8 months, suspended for a year while on probation.  Packingham appealed.  The court of appeals reversed, finding that the statute was unconstitutional on its face and as applied, too broadly sweeping in its effect on the free speech rights of registered sex offenders, and unduly vague.

The North Carolina Supreme Court totally rejected the court of appeals’ analysis. For one thing, the court found that the statute regulated conduct (the act of accessing the social media), not directly speech, although it clearly has an incidental effect on the ability of a sex offender to engage in speech activities using social media.  But the court decided that under the “heightened scrutiny” approach for evaluating regulations of conduct that incidentally affect speech, this statute survived because of the important state interest in protecting children, and the legislature’s care in tailoring the prohibition to focus on the kinds of social media where those so inclined could identify and communicate with minors.  The court concluded that this left open a wide variety of social media and other internet forums in which sex offenders were free to participate, and that the statute (and the notices to sex offenders) were written in such a way that somebody who sought to comply with the statute could determine which social media were off-limits.  Nobody disputed that accessing facebook.com was prohibited under this law, for example, and the court concluded that Packingham knew that facebook.com was off-limits for him, as reflected by his opening an account in an assumed name.  (What gave him away was that his photograph on the site matched the photographic depiction on his sex offender registration form.)  The court acknowledged that several similar laws in other states had been declared unconstitutionally, but sought to distinguish them as not being as fine-tuned as the North Carolina law in terms of the kinds of websites that were made off-limits.

The dissent was written by Justice Robin E. Hudson, joined by Justice Cheri Beasley. She disputed the majority’s conclusion that this was a regulation of conduct, but she determined that didn’t make much difference because she concluded that even under the standard of review used by the majority, the statute failed as overly broad and vague.  Restricting all sex offenders without regard to the nature of their offenses, for example, undercut the state’s justification of protecting minors.  Many people are required to register who committed offenses that do not involve minors, and who have no sexual interest in minors. Why, then, is the state restricting their 1st Amendment activities if its articulated justification for the restriction is to protect minors?  She also pointed out that there is no requirement that their offense leading to registration status involved using a computer, so why is their computer access being restricted?  Further, she contested the majority’s conclusion about how narrowly tailored the restriction is.  She pointed out that, literally applied, it could bar somebody from using amazon.com, because that website makes it possible for users to create profile pages including contact information facilitating communications between users with common interests.  Indeed, she pointed out that some websites allow minors to register with the approval of their parents.  One such is the largest circulation daily newspaper in North Carolina, so theoretically Packingham could be barred from accessing the newspaper on-line.  She argued that the law is both facially unconstitutional and unconstitutional as applied to Packingham.

In petitioning the Supreme Court for review, Packingham’s counsel wrote: “The statute singles out a subclass of persons, who are subject to criminal punishment based on expressive, associational, and communicative activities at the heart of the First Amendment, without any requirement that their activity caused any harm or was intended to.” The certiorari grant extends to the questions of whether the law is facially unconstitutional or just unconstitutional as applied to Packingham.  The case has the potential to bring into question numerous state laws that seek to regulate the expressive activities of sex offenders in the name of protecting minors.  Nobody argues that the state does not have a significant interest in protecting minors from sexual exploitation, or that the internet has created new opportunities for adults who are sexually interested in minors to locate and communicate with them.  At issue is how broadly such laws may sweep.  Should the laws pay more attention to the nature of sex offenses leading to registration in deciding whose activities should be restricted, and how narrowly tailored must the restrictions be to avoid subjecting individuals to long-term (even life-long in some cases) restrictions on their ability to use one of the main vehicles for communication in the 21st century without substantial justification for the limitation.  The petition was supported by an amicus brief from professors concerned with the law’s substantial burden they perceived on communicative freedom imposed by the statute.  Interestingly, N.C. Attorney General Roy Cooper did not want to bother responding to the certiorari petition, and filed a waiver of the right to respond on April 6, but then was requested to respond after the amicus brief was filed, and ultimately filed a response on June 30.

The interests of LGBT people are significantly implicated by this dispute. Even after the Supreme Court declared in 2003 that laws against gay sex were not enforceable against individuals engaged in private, adult consensual activities, there is a not inconsiderable number of gay people, especially men, who are still affected by sex registration requirements in many states based on pre-2003 criminal convictions and continuing enforcement of laws involving solicitation, conduct in public, prostitution, and, of course, intergenerational sex.  Many offender registration laws sweep broadly encompassing a wide variety of activity that is not specifically protected under the U.S. Supreme Court’s Lawrence v. Texas ruling, and litigation is ongoing challenging the continued registration requirements imposed in some jurisdictions on people whose offender status is based on pre-Lawrence convictions for conduct that may no longer be criminalized.  In this connection it is notable that there are still several states that have not legislatively reformed their sex crimes laws to comply with the Lawrence ruling, as a result of which law enforcement officials continue to make arrests for constitutionally protected conduct.