Court of Appeals: Facebook use OK for sex offenders
The N.C. Court of Appeals has concluded that a North Carolina law that prevents registered sex offenders from joining Facebook or similar social networking sites violates the First Amendment and is unconstitutional.
The ruling came Tuesday morning in the case of Lester Gerrard Packingham, who was charged and convicted in Durham County of accessing a commercial social networking Web site, in violation of a North Carolina statute that prevents registered sex offenders from joining sites such as Facebook and Myspace.
The Court ruled the statute is vague and fails to target the "evil" it is intended to rectify.
"Instead, it arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal," the opinion states. "The statute violates the First Amendment's guarantee of free speech, and it is unconstitutional on its face and as applied."
The Court vacated Packingham's conviction.
In 2006, Packingham was convicted of taking indecent liberties with a child and was required to register as a sex offender. In 2008, the N.C. General Assembly enacted a law for registered sex offenders that bans them from using a commercial social networking Web site if minor children can be members.
The Durham Police Department in 2010 then began investigating profiles on Myspace and Facebook to try to determine if any registered sex offenders were using the sites, according to the background in the case.
An officer recognized Packingham's photograph on a Facebook page under the user name, "J.R. Gerard," and confirmed it was Packingham's page. He was indicted on Sept. 20, 2012 because he had a profile on Facebook.
Packingham was convicted and sentenced to six to eight months in prison. The sentence was suspended, and he was placed on 12 months of supervised probation.
Attorney Glenn Gerding filed the appeal.
In analyzing the case and the law, the Court of Appeals considered whether the statute violated Packingham's federal and constitutional rights to free speech, expression, association, assembly and the press under the First and Fourteenth Amendments.
The Court determined that the statute was not "narrowly tailored" to achieve a significant governmental interest and did not leave open and ample alternative channels for communication of the information.
The appeal was the first constitutional challenge of the statute before the Court of Appeals, and the court examined several federal court decisions that it found to be persuasive. Cases in other states were overturned because the ban of social networking sites restricted more speech that was necessary to further the government's legitimate interests.
The North Carolina law applied to every registered sex offender regardless of the type of crime was committed, including crimes against other adults or crimes in which the offender did not use a social networking Web site to target children, the Court said in its opinion.
The way the law is written, it could prevent registered sex offenders from joining social networking sections of internet sites such as foodnetwork.com to discuss recipes or post photographs of a food, the opinion states.
"In its overall application, the statute prohibits a registered sex offender whose conviction is unrelated to sexual activity involving a minor from accessing a multitude of Web sites that, in all likelihood, are not frequented by minors," the opinion states.
Judge Rick Elmore wrote the opinion, and Judges Martha Geer and Christopher Dillon concurred.