By Lisa Soronen
Packingham v. North Carolina isn’t all bad news for states trying to restrict sex offenders from meeting minors online. In its opinion, the U.S. Supreme Court gives state legislatures a little advice on how to write such statutes constitutionally.
In Packingham v. North Carolina, the court ruled unanimously that a North Carolina law making it a felony for a registered sex offender to access social networking sites where minors can create profiles violates the First Amendment Free Speech Clause. The State and Local Legal Center (SLLC) filed an amicus brief arguing for the opposite result.
Lester Packingham, a registered sex offender, was charged with violating the North Carolina statute because he praised God on Facebook when a parking ticket was dismissed.
The Supreme Court reasoned that this law violates the free speech rights of sex offenders because it is too broad.
“By prohibiting sex offenders from using those websites, North Carolina, with one broad stroke, bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”
The court assumed sex offenders would not be able to use very common social networking sites like Facebook, LinkedIn, and Twitter, noting that all governors have Twitter accounts.
The court also stated that its opinion “should not be interpreted as barring a state from enacting more specific laws than the one at issue. ... Though the issue is not before the court, it can be assumed that the First Amendment permits a state to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.”
Finally, the court noted that it has never approved a statute “as broad in its reach” as this one.
If a statute limits speech based on content, it is subject to strict—and 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 argued, among other things, that the North Carolina law isn’t content-based, contrary to the opinion of a dissenting North Carolina Supreme Court judge. The U.S. Supreme Court assumed the statute was content-neutral but held that it is too broad to withstand even less rigorous intermediate scrutiny.
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 executive director of the State and Local Legal Center and is a frequent contributor to the NCSL Blog on judicial issues.