Yes, No, Maybe: North Carolina Still Isn’t Sure Whether to Ban Sex Offenders from Social Media

October 22, 2013

Tuesday, October 22, 2013, by Amanda Colley
To prey on a community’s fears, almost nothing garners more attention than the threat of sexual predators who prey on children—especially predators that lurk anonymously behind computer screens.  Back in the earlier days of the Internet, when MySpace was still a viable social media contender, NBC presented a television program To Catch a Predator from 2004-07.  The media started to expose and publicize that fear.  The result?  Broad statutory restrictions on convicted sex offenders’ access to social media.
One of the earliest examples was North Carolina’s 2008 Protect Children from Sexual Predator’s Act.  This law prohibits registered sex offenders from accessing commercial social network web sites that also allows minor children to become members or maintain personal web pages.  Violators are charged with a Class I felony.  People convicted of felonies have long endured limitation of constitutional rights, such as the right to bear arms and vote.  However, as the pendulum swings, within the last few years, there have been several laws banning or restricting sex offenders’ access to social media that have been thrown out by courts due to successful constitutional challenges.  Examples include Indiana, Nebraska, Louisiana, and California.  It was just a matter of time before North Carolina’s law came under the same scrutiny.
The North Carolina Court of Appeals handed down an opinion agreeing with petitioner Lester Gerard Packingham, Jr. of Durham, NC.  Packingham’s argument was that the law restricted his First and Fourteenth Amendment rights.  Packingham was originally convicted of taking indecent liberties with a child in 2002, and later was convicted of violating the Sexual Predator Social Media Law in 2012.  Durham law enforcement recognized Packingham’s picture under the user name “J.R. Gerard” on Facebook.  The NC Court of Appeals opinion was handed down on August 21, 2013, and was unanimous in its finding that the Sex Offender Social Media law was unconstitutional in that it was “too broad” and so “vague” that it failed to target the “evil” it was designed to rectify.

Whether or not the law on sex offenders’ access to social media is deemed to be unconstitutional, North Carolina needs to make a final decision.

The NC Attorney General, Roy Cooper, who lobbied for the law to be passed in 2008, requested, and was granted, a stay by the NC Supreme Court.  This court order, which the NC Supreme Court issued only a few days after the NC Court of Appeals decision, allowed the law to remain valid until the NC Attorney General could make his formal petition.  The state has filed this petition on September 24; in reply, Packingham’s counsel filed a response on October 3.
After the succession of other, similar state laws toppling on appeal, North Carolina’s reluctance to follow suit is somewhat surprising. NC Attorney General Cooper acknowledged that the law might need to be rewritten by the legislature to have a narrower scope.
While waiting for the Supreme Court’s response, the law remains on uncertain ground.  On one hand, if the law is unconstitutional, it needs to be confirmed by the court, as it has in various other states.  On the other hand, if the law complies with the constitution and does not impermissibly infringe on personal constitutional rights, the courts need to communicate that as well.  Whether or not the law on sex offenders’ access to social media is deemed to be unconstitutional, North Carolina needs to make a final decision.