Police arrested Durham, N.C. resident and convicted sex offender Lester G. Packingham, Jr. after he posted a message praising God on Facebook.
Now, the Supreme Court will weigh Packingham’s challenge to the North Carolina law that bans registered sex offenders from visiting online social networking sites that could be frequented by minors.
It’s a tricky case, requiring a balance between free speech and public safety, the short-handed court on Monday must sort through Packingham’s claim that the Internet access-restricting law adopted by North Carolina in 2008 violates the First Amendment. The court’s ultimate answer will guide other states, as well.
“Some of the logical paths to the court’s opinion could have considerable implications,” noted UCLA School of Law Professor Eugene Volokh.
The hourlong oral argument Monday morning returns the eight current justices to the expanding realm of social media for the first time since they struck down in 2015 the conviction of a Pennsylvania man charged with making threatening statements on Facebook.
The latest case, though, is focused even more sharply on the ubiquitous Internet with all its opportunities and potential dangers.
Almost everything that happens on social networking websites is protected First Amendment activity.
Attorneys for Lester G. Packingham Jr.
Specifically, the North Carolina law forbids registered sex offenders from accessing “commercial social networking Web sites” that permit minors to become members. The law specifies what it means by “social networking,” to cover sites that allow communication among users and allow creation of profiles that can include photos or names, among other requirements.
“Sexual predators became increasingly adept at using social media to gather intimate information about minors’ social lives, families, hobbies, hangouts, and the like,” North Carolina Attorney General Josh Stein’s office stated in a brief. “They then used this information to target unwitting victims.”
There are currently about 20,000 registered sex offenders in North Carolina. More than 1,000 cases have been prosecuted under the same state law that ensnared Packingham.
Underscoring the potentially broader consequences, 13 states including South Carolina, Texas and Pennsylvania have joined in a brief supporting North Carolina. Many states have adopted variations on legislation, which often gets challenged in court.
In 2014, for instance, the U.S. 9th Circuit Court of Appeals ruled against a California law that required registered sex offenders to provide authorities with a “list of any and all Internet identifiers established or used by the person.” The California Legislature subsequently revised the law last year to correct the First Amendment violations.
Packingham has secured the support of civil libertarians and groups like the Electronic Frontier Foundation, which cite the potentially vast reach of North Carolina’s online restriction.
“Nearly 7 in 10 American adults regularly use at least one Internet social networking service,” the Electronic Frontier Foundation noted in a brief, adding that “Facebook alone has more than 1.79 billion monthly active users.”
Monthly Facebook usage, while significant, was only about one-third as much when Packingham ran afoul of the state law in 2010. The social media company didn’t even exist in 2002, when Packingham committed the acts that got him listed as a sex offender in the first place.
A 21-year-old college student at the time, Packingham was originally indicted in Cabarrus County on two counts of statutory rape of a 13-year-old. He subsequently pled guilty to a charge of taking indecent liberties with a child. He was given a suspended sentence, placed on two years’ probation and required to register as a sex offender.
Packingham was off probation, but still on the sex offender registry, when he took to Facebook in April 2010 to celebrate the dismissal of a traffic ticket.
“Man God is good!” Packingham’s post declared. “No fine, no court costs, no nothing spent.....praise be to GOD, WOW! Thanks JESUS.”
A policeman saw the message, which Packingham had posted under a fictitious name. One North Carolina appeals court reversed his subsequent conviction, but the North Carolina Supreme Court restored the conviction and upheld the state law.
The case now turns on several crucial issues, including Packingham’s claim that the law goes too far and effectively isolates people from the primary means of modern communication. The law’s reach is open to dispute.
“The statute excludes registrants from the central platforms where, today, any North Carolinian can interact with his elected representatives, obtain a free online education, and find gainful employment,” Packingham’s attorneys at the Stanford Law School Litigation Clinic stated in a brief.
Stein, the North Carolina attorney general, countered that the law “leaves open vast other options on the Internet, including adult-only social networking sites,” as well as “government sites (and) commercial sites like eBay, Yelp, and Amazon.com.”
Stein further argues that the state law does not target any particular speech content, and so deserves more tolerant scrutiny from judges looking for potential First Amendment violations.