Lawyers take on Net predator law

Staff WriterJanuary 29, 2011 

  • Chapel Hill defense lawyer Glenn Gerding previously challenged a state law that called for a 300-foot buffer between registered sex offenders and any place where children might gather. Gerding said the law effectively banished registered sex offenders from churches. .

    In 2009, Orange-Chatham Superior Court Judge Allen Baddour ruled the law unconstitutional.

    But the law still stands outside Orange and Chatham because the prosecution didn't appeal and it never went to a higher court.

    Gerding had brought that case after his client, James Nichols, was charged with a crime for attending Moncure Baptist Church.

    Baddour acknowledged the state's compelling interest in protecting children, but he said, "there are less drastic means for achieving the same purpose."

    Though he won that case, Gerding had been hoping to take it to the N.C. Court of Appeals so that a ruling like Baddour's would apply to cases all over the state.

    "It's great for my client," Gerding said, but it doesn't bind a judge in any other district.

    Staff writer Jesse James DeConto

Registered sex offenders aren't allowed at schools, churches, shopping malls or other places where children may gather in the real world. But what about Facebook and other spots in the virtual world?

Two local lawyers say it's unconstitutional to bar registered sex offenders from such social networking sites, and they're seeking to overturn a state law passed by the legislature three years ago.

Across the state last year, 75 offenders were charged under the law, which targets social networks such as MySpace and Facebook that allow minors as members. Eight men were charged by the Durham police and sheriff's departments last summer after an investigation determined that the men were maintaining accounts on the sites.

Two of those men - Christian Martin Johnson, 34, and Lester Gerard Packingham, 29 - are now challenging the Information Age statute.

"The regulation does not just keep a registered sex offender from engaging in obscene speech with a minor," wrote Johnson's lawyer, Glenn Gerding of Chapel Hill, in a motion filed late last month. "It prohibits any and all speech, however innocent, even if it's a religious conversation between the offender and his priest, or a discussion of family matters between the offender and his mother."

Packingham's lawyer, Lynn Norton-Ramirez, argues the law keeps her client from communicating with friends and promoting his business on Facebook.

But Lt. Gov. Walter Dalton, who sponsored the law as a state senator, says there are other ways registered sex offenders can communicate.

"We do have the mail," he said. "We do have telephone."

Dalton said the Internet restriction is no different from a sex offender being prohibited from running a food vending cart on a school campus.

"When you are deemed to be a sexual predator, sometimes you do not have all the full rights of every citizen out there," Dalton said. "It's got a good public purpose. We don't need sex offenders engaging with minors."

But online communication is not the same as physical proximity, said Rebecca Jeschke, a spokeswoman for the Electronic Frontier Foundation, a San Francisco-based organization committed to Internet freedom.

"Speech is very well-protected under the Constitution," she said. "It's definitely a problem to say certain classes of people can't talk on the Internet."

The EFF supports educating children about Internet safety, while letting sites such as Facebook make their own rules instead of the government imposing laws.

Is law too broad?

Johnson's underlying sex offenses were two counts of taking indecent liberties with a child in Franklin County. He pleaded guilty to those after initially being charged with more serious crimes.

After serving his sentence, Johnson worked as a computer software developer, but Gerding said the law has kept his client from integrating his company's product with Facebook and MySpace.

"Mr. Johnson was unable to perform those work-related assignments," the attorney wrote. "[He] was ultimately fired from his job in part because of the restrictions and in part because of the charge in this case."

Gerding said the law is so broad that it prevents registered sex offenders such as Johnson from accessing websites such as Google or amazon.com, because these sites allow a user to create a profile and to share information and photos with other members.

"That could include sharing a recipe on BettyCrocker.com, exchanging information about heart disease on MedHelp.com, or speculating about the University of North Carolina Tar Heels sports teams on www.Scout.com," Gerding said.

But Dalton said he doubts the criminal justice system would try to enforce the law beyond clear-cut social-networking sites such as Facebook and MySpace.

"I believe that these cases show that the statute is doing exactly what it was intended to do," he said.

Intent may be key

Dalton said that if evidence shows an offender had no bad intent in accessing a site, a judge could consider that in meting out punishment. Still, Dalton said, that doesn't mean the law is unconstitutional.

Durham Assistant District Attorney Mark McCullough hasn't filed any response to the motions and declined to comment on the cases while they're still pending. A spokeswoman said Attorney General Roy Cooper backs the law but can't comment on individual cases.

The Durham County Superior Court is scheduled to hear the motions in mid-February.

jesse.deconto@newsobserver.com or 919-932-8760

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