The N.C. Supreme Court has upheld a state law prohibiting registered sex offenders from using Facebook or other social networking sites that minors can join.
In the split opinion issued Friday, the justices reversed an N.C. Court of Appeals ruling that found the 2008 law too broad and vague, and therefore unconstitutional.
The challenge was brought by Lester Gerard Parkingham Jr., a registered sex offender in North Carolina, who faced additional charges after Durham police found a Facebook page he created under an assumed name.
The case raises questions about whether such laws prohibit sex offenders from participating in web-based forums, which have become virtual town squares, as they re-enter society.
The four justices in the majority ruled that the “incidental burden imposed” upon convicted sex offenders “is not greater than necessary to further the governmental interest of protecting children from registered sex offenders.”
Writing for the majority, Justice Robert Edmunds stated, “the General Assembly has carefully tailored the statute in such a way as to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information” about minors.
For example, Edmunds wrote, the defendant could join The Paula Deen Network site, where people swap recipes, because users must be at least 18.
Edmunds wrote that the law is meant to limit conduct and that it only incidentally affects speech.
“The justification of the statute — protecting minors from registered sex offenders — is unrelated to any speech on a regulated site,” he wrote.
Emails and text messages aren’t restricted by the law.
“Accordingly, the regulation leaves open ample channels of communication that registered sex offenders may freely access,” Edmunds stated in the majority opinion.
Justice Robin Hudson dissented, and Justice Cheri Beasley joined her in a minority opinion describing the law as unconstitutionally vague.
They contended that the law prohibits sex offenders from “communicating with others through many widely used commercial networking sites.” It also could restrict sex offenders from joining news sites and being able to use retailers such as Amazon.
Justice Sam J. Ervin IV did not participate in the discussion or decision in the case. He was an N.C. Court of Appeals judge when the N.C. Supreme Court heard arguments in September 2014.
In North Carolina, where 14,268 people are entered in the N.C. Sex Offender and Public Protection Registry database, civil liberty organizations have paid close attention to Packingham’s case.
The 2008 restriction was part of a legislative package that N.C. Attorney General Roy Cooper advocated for years. Packingham argued that prohibiting him from those social media sites is a violation of his rights to “free speech, expression, association, assembly and the press under the First and Fourteenth Amendments.”
Packingham was convicted in 2002 of taking indecent liberties with a child.
In 2010, Durham police began investigating Myspace and Facebook profiles to enforce the law. Investigators said they found a picture of Packingham on Facebook and determined he created the profile page, according to court documents. Packingham was convicted in May 2012 and received a suspended sentence and probation.
The 2008 legislative package came about at a time that state attorneys general across the nation were raising concerns about such social media sites as Facebook and Myspace, hoping to protect users from sexual predators using the networks.
I pushed for this law to put another barrier between sex offenders and potential victims, and I’m pleased that the court has agreed with our arguments to keep this law in place.
Roy Cooper, North Carolina attorney general
Though many of those sites now are more widely used by adults than children, the North Carolina law makes it illegal for a registered sex offender to access a website where he or she knows minors have personal web pages.
“Our laws bar convicted sex offenders from living near schools and working with young people in real life, and it’s just as important to protect kids in the online world,” Cooper said in a statement issued Friday. “I pushed for this law to put another barrier between sex offenders and potential victims, and I’m pleased that the court has agreed with our arguments to keep this law in place.”
Glenn Gerding, the Chapel Hill attorney who represented Packingham, argued several years ago that the law as written could make it difficult for a registered offender to engage in routine Internet activity, such as a Google search.
The law defines a “commercial social networking website” as one that derives revenue from membership fees or advertising, facilitates social introductions and allows users to create pages to post information.
Though the law makes exceptions for websites that provide narrow services such as email, the three-judge N.C. appeals court panel that ruled on the case said it could prohibit a registered sex offender from accessing Google, Amazon or even a cooking TV channel website because the sites provide secondary social networking forums.
North Carolina’s sex offender laws require people convicted since 1996 of sexually violent offenses and specific crimes against children to register with the sheriffs in the counties where they live. Those on the registry may not live close to schools or daycares. They are barred from working with minors and visiting certain places where children are likely to be present.
In 2013, Gerding said one of his clients had not been able to attend his child’s T-ball games because of the restrictions. The client’s wife had planned to go to the game and use Skype so her husband could watch without being on the premises, but a sheriff told him that would violate the 2008 law.
Efforts to reach Gerding on Friday were unsucessful.