By Lisa Soronen
Balancing the rights of sex offenders and protecting children in particular from sex offenders has been a challenge for states for some time.
The issue the U.S. Supreme Court will decide in Packingham v. North Carolina is whether a North Carolina statute prohibiting registered sex offenders from accessing social networking websites where they know minors can create or maintain a profile violates the First Amendment. The State and Local Legal Center (SLLC) amicus brief argues this law does not violate the First Amendment.
Lester Packingham was charged with violating the North Carolina statute because he accessed Facebook. In the posting that got him in trouble Packingham thanked God for the dismissal of a ticket.
If a statute limits speech based on content it is subject to strict (nearly always fatal) scrutiny. In Reed v. Town of Gilbert, Arizona (2015), the Supreme Court held that the definition of content-based is very broad. The SLLC amicus brief argues that the North Carolina law isn’t content-based. A conviction under the statute does not turn on the content of the speech. It turns on whether sex offenders have accessed websites where minors can maintain profiles.
The brief also urges the court to defer to state and local governments in their “good-faith attempt to solve a vexing social problem. ... Social media has become so integral to many young teenagers’ identities that, when their vulnerability leads to an encounter with a predator, they may not tell their parents for fear of losing their access to this part of their lives.”
Finally, the brief encourages the court to resist Packingham’s assertion that the statute has an implausibly broad scope. “Packingham’s conviction arose from his access to Facebook—conduct that was squarely within the language and intended scope of the statute. The suggestion by Packingham and his amici that the statute would bar sex offenders’ access to news websites such as nytimes.com, and that it would be a crime to accidentally access a covered site, is inconsistent with the statutory text.”
John Neiman and Braxton Thrash of Maynard Cooper & Gale wrote the SLLC amicus brief which was joined by the Council of State Governments, the International City/County Management Association, and the International Municipal Lawyers Association.
Lisa Soronen is the executive director of the State and Local Legal Center and a frequent contributor in Supreme Court and other judicial issues for the NCSL Blog.