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US Supreme Court Strikes Down Registered Sex Offender Internet Use Offense

Posted by Sean A. Black | Jun 20, 2017 | 0 Comments

June 19, 2017.

The United States Supreme Court in Packingham v. North Carolina  struck down a North Carolina statute restricting registered sex offenders from accessing a broad array of internet sites.  It appears that at least one thousand persons had previously been prosecuted under this law.

What was the Law?

N.C. Gen. Stat. Ann. §§ 14-202.5(a), (e) (2015) made it a felony for a registered sex offender "to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages."  The definition of "commercial social networking Web site" was so broad that it would apply not only to Facebook, Twitter, Instagram and LinkedIn, but also to Amazon, WebMD, and newspaper sites.

Why was it struck down?

The First Amendment restricts our governments (federal, state and local) from infringing on our freedom of speech.  While some speech can itself be criminal and can be restricted or punished, that is not at issue in this case.  Our freedom of speech includes the  right to "have access to places where they can speak and listen, and then, after reflection, speak and listen once more."  In the modern age, those places, as often as not, are located in cyberspace, the internet.  

Registered sex offenders enjoy the same First Amendment protections that we all do.  As long as their exercise of free speech does not involve criminal activity or the initiation of criminal activity, there is  a heavy burden on government efforts to restrict those rights.

The Court assumes that the law in this case is content neutral.  If that is the case, then the law is analyzed according to what is known as intermediate scrutiny.  This means that the court looked to determine if the law is "narrowly tailored to serve a significant governmental interest."  Another way of expressing this is that the statute must no burden "substantially more speech than is necessary to further the government's legitimate interests."

Protection of children and victims of abuse from abuse is a significant governmental interest.  So, that is not the issue.  The issue is whether the North Carolina law cuts too broad a swath in its efforts to protect children and victims, and the Court found, without dissent, that it absolutely was too broad. 

Can There be Restrictions on Registered Sex Offenders' Use of Internet?

The Court certainly suggests that a narrowly tailored law could withstand constitutional scrutiny.  Such a statute could prohibit "conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor."

The court, however, noted its concern that this law applied not only to persons currently serving a sentence but also to persons who had completed their sentence and were not subject o supervision.  That issue was not, however a part of the Packingham case

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.

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