Supreme Court justices on Monday cast doubt on a North Carolina law that bans registered sex offenders from using Facebook and other online social media.
Through their questions and statements, justices repeatedly voiced skepticism about the 2008 law now being challenged by Durham, North Carolina, resident and convicted sex offender Lester G. Packingham Jr. A majority appeared ready to rule against the law.
“Does it limit free speech?” Justice Stephen Breyer asked rhetorically.
“Dramatically,” he said.
Justice Elena Kagan was even more pointed, as she hammered North Carolina Senior Deputy Attorney General Robert C. Montgomery with observations about the omnipresence of social media in modern society.
“Everybody uses Twitter,” Kagan noted. “This has become a crucially important channel of political communication.”
Under North Carolina’s law, Kagan added, a registered sex offender “cannot go on the president’s Twitter account to see what the president is saying today.”
The North Carolina law forbids registered sex offenders from accessing “commercial social networking websites” 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.
There are about 20,000 registered sex offenders in North Carolina. More than 1,000 cases have been prosecuted under the same state law violated by Packingham.
“These are some of the worst criminals,” Montgomery said, adding that “the law is enforceable and effective.”
Thirteen states – including South Carolina, Texas and Pennsylvania – have joined in a brief supporting North Carolina. Many states have adopted variations on the legislation, which often gets challenged in court.
In 2014, for instance, the 9th U.S. 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 revised the law last year to correct the First Amendment violations.
“These people are being cut out from a very large part of the marketplace of ideas,” Justice Ruth Bader Ginsburg said of North Carolina’s registered sex offenders.
When Montgomery likened the North Carolina law to a Supreme Court case in which justices upheld a ban on political speech outside polling places, Justice Anthony Kennedy brusquely dismissed the comparison, saying, “That does not help you at all.”
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 pleaded 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 under an assumed name 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.”
One North Carolina appeals court reversed his subsequent conviction, but the North Carolina Supreme Court restored the conviction and upheld the state law.
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“This law only applies in the places where everything that happens is a First Amendment activity,” Packingham’s attorney David T. Goldberg told the justices.
An instructor in the Stanford Law School’s Supreme Court Litigation Clinic, Goldberg added that the North Carolina law “goes way too far” and “forecloses some of the most important channels of communication in our society.” Several justices tried, without apparent success, to see whether the law could be narrowed so as to avoid First Amendment problems.
Conservative Justice Samuel Alito, a staunch law-and-order supporter, sounded most likely to support the state’s law.
If the court ties 4-4, the North Carolina Supreme Court ruling would be upheld and the law would survive, but no national precedent would be set.
In keeping with his standard practice, Justice Clarence Thomas did not speak or ask questions during the argument. A decision is expected by the end of June.
Michael Doyle: 202-383-6153, @MichaelDoyle10
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