RALEIGH — The North Carolina law banning registered sex offenders from commercial social networking sites like Facebook that children can use is unconstitutional because it’s vague and violates free speech, the state Court of Appeals ruled Tuesday.
A three-judge panel ruled unanimously in vacating the additional felony conviction of a registered offender in Durham County for accessing a site after authorities say he had created a profile page on Facebook. His attorney argued the 2008 law wasn’t narrowly written to serve a legitimate government interest and could prohibit routine Internet activity, such as a performing a Google search.
“When the General Assembly passed the law, it was entirely feel-good and designed to make people feel secure,’ said Glenn Gerding, a Chapel Hill lawyer representing Lester Gerard Packingham in court. But legislators, Gerding added, “didn’t even consider how this might be implemented.”
The “Protect Children From Sexual Predators Act” made it unlawful among other things for a registered sex offender to access a website where the person knows minors are permitted to become members or have personal Web pages.
The measure is part of a host of restrictions to protect minors from sexual predators, but the judges say this one is too broad.
“It arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal,” Court of Appeals Judge Rick Elmore wrote in the opinion. The law “violates the First Amendment’s guarantee of free speech, and it is unconstitutional on its face and as applied.”
The Court of Appeals is the state’s intermediate appeals venue. Attorney General Roy Cooper, whose office represented the state in the case, said lawyers will ask the state Supreme Court to hear the case. Since it was a unanimous ruling, justices aren’t obligated to take up the appeal.
“The law is broad because technology moves fast and we don’t want predators and child pornographers to use legal loopholes,” Cooper said in an interview. He helped lobby for the 2008 law at a time when attorneys general nationwide pressured Facebook and MySpace to protect users from sexual predators found to be using their networks.
Elmore wrote state attorneys had failed to make a convincing argument about the law’s vagueness. The law defines “commercial social networking website” as one that derives revenue from membership fees or advertising, facilitates social introductions and allows users to create pages to post information.
The law sets exceptions for sites that provide one narrow service like email and whose primary service is commercial transactions. But the law could apply to accessing Google, Amazon or even a cooking TV channel web site because they contain secondary social networking pages, Elmore said.
“It is fundamentally impossible to expect an offender, or any other person, to ‘know’ whether he is banned from a particular website prior to ‘accessing’ it,’ Elmore wrote. Judges Martha Geer and Chris Dillon joined him in the opinion.
The case was the first before the appeals court to challenge the law’s constitutionality, Elmore wrote. He arrived at his decision in part by reviewing federal cases in which somewhat similar laws in Nebraska and Indiana. But Cooper said “the constitutional journey of these types of laws is early yet.”
Tuesday’s challenge was brought by Packingham, who was convicted in 2002 of taking indecent liberties with a child, so he became a registered sex offender. Durham police began investigating MySpace and Facebook profiles to enforce the law in 2010. That’s where officers say they found a picture of Packingham at Facebook and determined he created the profile page, the opinion said.
Packingham was indicted. A trial judge denied a motion seeking to have the law ruled unconstitutional, and a jury convicted him May 2012. He received a suspended sentence and probation.
Elmore wrote the state had passed laws designed to protect children from predators without abridging the freedom of speech, including one requiring registered offenders to disclose to authorities their online user names.
Gerding said Tuesday’s ruling shows “the First Amendment protects people who have been convicted of crimes — even those that have been convicted of sex offenses.”
People convicted of sexually violent offenses or certain crimes against children since 1996 must register with the sheriff in the county they’ll reside. Most must stay on the list at least 30 years, although they can seek a lesser period after 10 years. Such offenders are barred from living close to a school or daycare, working with minors or visiting certain locations where children are likely to be. Citizens can search an online database to see where registered sex offenders live.
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