Blocking Sex Offenders from Social Media: Packingham v. North Carolina
In 2008, North Carolina passed N.C.G.S.A. § 14-202.5, a statute placing a ban on registered sex offenders from accessing social media websites that allow access to anyone under the age of eighteen. The statute is intended to protect minors from contact with sex offenders on the Internet and makes a violation of the statute a Class I felony. The North Carolina statute places a ban on the majority of popular social media websites we all use every day including Facebook, Twitter, and Instagram. But is N.C.G.S.A. § 14-202.5 constitutional? Lester Gerard Packingham says “no” and he’s hoping the Supreme Court agrees with him. Packingham, a registered sex offender in North Carolina since 2002, was found guilty of violating the statute when he posted to Facebook rejoicing in his traffic citation’s dismissal in 2010. The North Carolina Court of Appeals ruled that the statute violated Packingham’s First Amendment guarantee of freedom of speech. However, the North Carolina Supreme Court reversed that decision, stating Packingham’s First Amendment rights were not unduly burdened because Packingham still retained ample alternative channels of communication. The ample alternatives listed by the North Carolina Supreme Court included the Paula Deen Network, WRAL, Glassdoor, and Shutterfly. All the alternative sites listed require a potential user to be at least eighteen years old.
Because the statute does not limit what is being said but does limit how it is being said, the statute is content-neutral and must be analyzed using intermediate scrutiny. The Supreme Court will examine five factors to determine whether North Carolina’s content-neutral statute is constitutional under intermediate scrutiny. The statute must: be within the government’s constitutional power to enact, further a substantial government interest, be unrelated to the suppression of speech, be narrowly tailored, and leave open ample alternative channels of communication. The argument in this case stems from the word “ample.” First Amendment litigators argue that North Carolina’s statute does not provide ample alternatives to the social media websites being barred. These banned social media websites have become an integral part of freedom of speech because of their vast reach and wide subject content, which many argue is not available on the alternative websites suggested by the North Carolina Supreme Court. While supporters of the statute believe it satisfies all the necessary factors, I believe it is too far a stretch to label a much less popular social media website like the Paula Deen Network as an ample alternative to Facebook. Popularity of a social media website should be a factor the Supreme Court uses in its analysis of ample alternatives.
North Carolina is not the only state that regulates how sex offenders use social media. Florida, Illinois, Kentucky, Minnesota, New York, South Carolina, and Texas have adopted laws to limit the usage of social media websites by sex offenders. Most of these limitations include complete disclosure of all profiles on social media websites as well as monitoring Internet activity. These limitations differ greatly from North Carolina’s stance of a complete ban on websites with minors as participating members. Complete bans have proven to be unsuccessful in lower courts. Indiana, Louisiana, and Nebraska enacted statutes that completely banned registered sex offenders from using any and all social media websites. All three statutes in Indiana, Louisiana, and Nebraska were found to be unconstitutional in federal courts due to First Amendment violations. Those federal courts ruled the laws were too broad or unreasonably restricted the rights of sex offenders’ rights with complete bans. Louisiana has innovatively found a way to allow registered sex offenders to use social media websites. In May 2012, Louisiana enacted a law that requires registered sex offenders to visibly post their sex offender status on the offender’s profile page. If the Supreme Court strikes down North Carolina’s statute, the state might need to resort to other creative alternatives like Louisiana.
Facebook and Instagram actually bar registered sex offenders in their terms of service agreements, but Packingham failed to attack the terms of service of these social media websites and is solely focusing on the constitutionality of the North Carolina statute. This isn’t the first time the Supreme Court has heard a case involving social media and the First Amendment, but this case will likely resolve disagreements among lower court decisions. The “Ample Alternative Channels” requirement could be clarified and offer a benchmark for lower courts to follow. In a recent estimate, there are over 700,000 registered sex offenders across the United States who will be affected by the Court’s decision. The Supreme Court agreed to hear Packingham’s case on October 28, 2016. Arguments have yet to be scheduled.