North Carolina versus First Amendment: SCOTUS to decide 5


By ANDREW COHEN . . . Lester Gerard Packingham was having a really good day back on April 27, 2010. The North Carolina man had just learned that a traffic ticket against him had been dismissed, so he logged onto his Facebook account and gleefully told the world: “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court costs, no nothing spent… Praise be to GOD, WOW! Thanks Jesus.”

At the same time, Brian Schnee, a police officer in Durham, was doing his job, working to identify registered sex offenders in the state who were accessing sites like Facebook. He came across Packingham’s post and recognized the face but not the name on the page, “J.r. Gerrard.” Because Schnee knew Packingham to be a sex offender the officer got a search warrant for Packingham’s residence, where he found proof that Packingham was, indeed, “J.r. Gerrard” and that he had, indeed, opened the Facebook account.

Packingham’s glee soon ended. He was indicted and ultimately convicted of violating a state law that makes it a felony for any person on the state’s sex offender registry to “access” any “commercial social networking Website” that he or she “knows” does not restrict membership to adults. The sweeping measure, enacted in 2008, applies to approximately 20,000 North Carolina residents who have been placed on the offender registry for one reason or another. It has been used in more than 1,000 prosecutions like the one against Packingham.

But none of those other cases generated a successful U.S. Supreme Court appeal. For six years now Packingham has fought the charges, in and out of court, on the simple premise that it should not be a crime to express online joy (on Facebook or any other site) about the demise of a parking ticket. And prosecutors and state attorneys have been equally adamant since 2010 that the law that ensnared Packingham is a valid exercise of state power to protect the Internet’s most vulnerable surfers from great harm.

Next week, the justices in Washington will hear oral arguments in the Packingham case. The primary dispute centers around Packingham’s free speech rights: does the First Amendment protect his ability to be on Facebook as a sex offender? But just below the surface is a dispute about how far the state may go to punish someone for acting without criminal intent. As Packingham’s lawyers put it: “[E]arly First Amendment cases establish basic principles restricting criminal punishment to persons proved to have acted with both ‘an evil doing hand’ and ‘an evil meaning mind’” and Packingham is guilty of neither.

(Please continue reading at The Marshall Project)


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5 thoughts on “North Carolina versus First Amendment: SCOTUS to decide

  • Chris

    I have similar concerns about the NC legislature’s penchant for replacing bad law with worse law (see new exclusion zone laws to replace unconstitutional one). But at the same time, I see reasons for hope. Federal courts, including the 4th district that struck down the aforementioned exclusion zone law, are beginning to seek more than “common-sense” rationale for registry laws. No state can produce compelling research that says these laws are necessary. Which in turn begs the question: If these laws do not reduce sex crimes, do not reduce recidivism, and therefore do not affect the stated civic objective, what purpose do they really serve? Simply put, they are punitive. And a punitive scheme clearly violates ex post facto laws, and potentially violates the constitutional ban on cruel and unusual punishment. I may be an optimist, but I see an end to the registry (or at least an end for all but those independently deemed to be “sexually violent predators”) within the next five to ten years.

    I think the Packingham case is very important for obvious free speech reasons. But perhaps the most important thing we will learn is whether SCOTUS is finally ready to re-examine their “frightening and high” beliefs of RSO recidivism rates.

  • NCRSO

    I and many other NC registered citizens are excited to see what the results of this will be. I’ve read the amicus briefs from both sides, and the state’s defense sounds like a Trump supporter talking nonstop about Hillary – dancing around the issue that’s actually being argued, and arguing every other point around it. The lawyers for Packingham were coherent and make an excellent case (on paper).

    It seems likely enough to me that [the royal] “we” will win this case. The real question will be: how quickly will the NC legislature scrape up another law to replace it with, how poorly-written will it be (since they will be rushing), and will it actually make things worse?

    Part of the argument is that the scope of the existing law is too broad and/or vague. What if North Carolina decides to tighten the belt and simply restricts all access to the internet, like some states do? Or, more realistically, if they attempt to actually keep a list of permissible/non-permissible services?

    They won’t have any sympathy that I have thousands of dollars invested into the Google ecosystem (photos, music, movies, apps, and even devices) if they decide to ban RSOs from having Google accounts (a Google account starts with GMail but encompasses Google+, YouTube, and many other services that may be arguably “social” in nature, even though one may choose not to use these features of the account).

    I’ll grant that I’m alarmist and tend to start by assuming the worst, but there can be no doubt that they will attempt to replace the law if Packingham wins. The question is, will it be for the better or for the worse?