“All persons” include people on the registry for sex crimes according to the ruling handed down Monday. Packingham v. North Carolina analyzed the extent to which North Carolina’s draconian measure to prevent anyone on the sex offender registry from using social media was necessary and legitimate. Justice Alito mentioned in his concurring opinion that the statute was so broad that accessing Amazon and Walmart could be construed as a violation. Not only was the law extremely broad, but the facts of the case were ripe for a challenge.

In 2002, at age 21, Lester Packingham engaged in sexual wrongdoing with a minor. He was convicted and served out his sentence. Flash forward eight years to 2010, when Lester logged on to Facebook to jubilantly praise God for a dismissed parking ticket. A North Carolina detective discovered the post and arrested him for violating the state ban on accessing Facebook.

Three facts are important to remember. One, Lester was no longer under community supervision, but he was still listed on the state’s registry for sex crimes. Two, Lester was not arrested for committing another act of sexual wrongdoing, nor was he ever convicted for using the internet to engage in sexual wrongdoing. Three, over 1,000 people have been prosecuted under this law since 2008. These facts implicate the North Carolina statute as more of a tool to restrict First Amendment rights and incarcerate people, with less utility given to preventing sexual abuse.

Please read David’s full commentary on the Sex Law and Policy Center website.

In reversing the N.C. Supreme Court’s decision in Packingham v. North Carolina, the high Court admits wading into uncharted territory by explaining that the case “is one of the first [it] has taken to address the relationship between the First Amendment and the modern Internet,” but was guided to its decision by long held and fundamental approaches to First Amendment jurisprudence.

“While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ . . . [and] the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”

The Court made clear that states remain within the legitimate and permissible contours of First Amendment protections whenever they seek to restrict criminal conduct. “Specific criminal acts are not protected speech even if speech is the means for their commission.” Thus, laws targeting a sex offender (or anyone else) who engages in “conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor” will continue to be constitutionally enforceable.

Stating that North Carolina had not met its burden to demonstrate that a social media ban achieved its legitimate interests in protecting children from predators, the Court held that states “may not enact [a] complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture.”

The Court appeared particularly concerned about the application of restrictive laws to citizens who “are no longer subject to the supervision of the criminal justice system” and found it “unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.” The specific question before the Court in Packingham provided no opportunity for the Court to resolve this tension, but it’s a prescient concern that Justice Kennedy was keen to observe which was embraced by at least four additional justices.

NARSOL was joined by its North Carolina affiliate, NCRSOL, and the Association for the Treatment of Sexual Abusers (ATSA) on an amicus brief filed in support of the petitioner, Lester Packingham.

At 21, Mr. Packingham was convicted of taking indecent liberties with a minor—a non-contact offense in North Carolina. As a result he was placed on North Carolina’s sex offender registry and subjected to the state’s prohibition against having or accessing an account on any online platform that allowed exchange of ideas and on which minors were allowed to create and maintain accounts.

In 2010, Packingham violated this law when he took to Facebook to claim, “God is good,” over having a traffic ticket dismissed. As a result he was arrested and charged, not for what he said but for where he said it. He and his attorneys have fought the charges for the past six years, a fight that culminated in arguments before the U.S. Supreme Court.

At the heart of the argument is the First Amendment right to free speech. Packingham has satisfied all court-imposed requirements and has successfully completed his criminal sentence. He is under no state or federal supervision. He has not re-offended or come under scrutiny for any illegal activity except using Facebook to express his joy about the outcome of a traffic ticket.

The National Association for Rational Sexual Offense Laws (NARSOL) and North Carolina RSOL supported Packingham’s First Amendment claims by way of an amicus brief filed on his behalf. We contend, as do Mr. Packingham and his attorneys, that depriving over 17,000 North Carolina citizens of social media access just because they are on the sex offender registry is an egregious abuse of the state’s power and does virtually nothing to address the state’s compelling interest in protecting minors.

The ban applies to all registrants regardless of whether or not their original offenses involved a minor, whether or not those offenses involved Internet use, or whether the persons were engaging in “stalking” or “grooming” behavior towards a minor. Such a ban makes illegal perfectly innocent and legal activities such as participating in or even following political discussions on Twitter, advertising one’s home business on Facebook, or commenting on a variety of opinion pieces on almost all online media comment platforms.

If the state of North Carolina is convinced that its youth are at risk from citizens on the registry due to contact through online activities, a ban on such activities can surely be tailored more narrowly to address real criminal conduct rather than cutting such a wide swath through the heart of the First Amendment.

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Here’s how other media outlets are covering oral arguments:
ScotusBlog
U.S. News & World Report
Bloomberg

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)

Writing for the majority, Justice Robert H. “Bob” Edmunds reasoned that since the statute under review in Packingham concerned only conduct, and not speech, the impact to registered citizens’ First Amendment rights was merely incidental to the otherwise legitimate interest of the state in prohibiting such conduct. He further reasoned that there were already “ample alternative means” through which registered citizens could participate in expressive forums open and available to them. His reasoning was strained and tortured and his opinion was summarily dismembered by the dissent penned by Justice Robin E. Hudson.

For additional information and analyses of what’s at stake for the community of registered citizens throughout the entire nation, please read Eugene Volokh’s piece in the Washington Post. Prof. Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law and filed an Amicus Brief in support of the petition for Certiorari in the Packingham case.

Last last month, two state senators in New York—Jeffrey Klein and Diane Savino—issued a report laying out an apparently scary set of numbers. In New York City, Pokémon from Pokémon Go were spotted in front of the homes of 57 people on the state sex registry. Fifty-nine Poké gyms or Pokéstops and 73 other Pokémon items were within a half-block of a registrant’s residence.

To be clear, there have been no reports of Pokémon-related sex crimes. The senators’ document does cite the case of a man on Indiana’s sex registry who was found playing Pokémon Go near where a 16-year-old boy also was playing. In another case in Arizona, the game developers put a Pokéstop at a historic hotel that has since been turned into a halfway house for 43 men on the state registry.

That was convincing enough for New York governor Andrew Cuomo to issue an order banning sex offenders on parole from playing Pokémon Go this week. On Wednesday, Klein, Savino, and additional senators introduced state bills that, among other things, would ban game developers from putting “in-game objectives” within a hundred feet of the home of a registrant.

Why target those with a sex crime on their record? A spokesperson for Klein’s office told VICE this is because of the “very high” recidivism rates of sex offenders compared with other criminals, citing data from a report that Klein co-authored last year. That document notes a re-arrest rate of 48 percent within eight years for those on New York’s sex registry, based on 2007 state data.

But that re-arrest rate includes charges for any crime—not just sex offenses, the target of the legislation. And it confirms a fact that recidivism researchers have long known: When sex offenders do commit another crime, it’s far more likely to be a non-sexual one. (Continue reading at Vice.com)

The Pokémon Go craze is sweeping the nation and beyond, sending young people scurrying through the streets, phones in hand, frantically seeking these fictional little creatures.

It also has politicians scurrying to find heavy-handed answers to trumped-up fears.

That’s because it didn’t take long before someone realized that, horror of horrors, with all of these children, teenagers and twenty-somethings scampering about, some of them ran the risk of coming close to one or more registered sex offenders.

Television anchors, like weathermen, have displayed maps of local areas with Pokémon stops — PokéStops is what they’re called — marked in one color and the homes of registered offenders marked in another, pointing out, with horrified faces but barely concealed glee, the places where one is within proximity to the other.

And now, following a report by state Sens. Jeff Klein and Diane Savino, showing Pokémon, PokéStops, and other Pokémon-related items appearing near residences occupied by registered offenders , Gov. Cuomo has made a first-in-the-nation move, ordering the state to make it a parole condition that no sex offender under supervision be allowed to download, access or play the game.

Read the rest of the op-ed at the New York Daily News.

After the chief justice extended the time for filing, Atty. Glenn Gerding, counsel for the petitioner, Lester Gerard Packingham, filed a Petition for Certiorari from the North Carolina Supreme Court on March 21, 2016.

Mr. Packingham is a North Carolina registrant who was convicted by a jury in 2011 for accessing Facebook, a commercial networking website which permits minors as registered users. This was a violation of N.C.G.S. § 14-202.5. Before trial, Packingham sought to have the charges dismissed on grounds that the statute violated his First Amendment rights. In ruling on the motion, the trial judge found the statute to be constitutional as applied to the defendant and declined to address the defendant’s facial challenge for want of jurisdiction. Packingham was sentenced to 6 to 8 months in prison, fully suspended, pursuant to the completion of 12 months of supervised probation. Packingham appealed.

In August, 2013, a three-judge panel of the North Carolina Court of Appeals vacated the lower court’s ruling and concluded that N.C.G.S. § 14- 202.5 was not narrowly tailored, vague, and failed to “target the ‘evil’ it is intended to rectify.” The Court of Appeals also held that the statute violated “the First Amendment’s guarantee of free speech, and [was] unconstitutional on its face and as applied.”

In turn, the NC Attorney General’s office appealed the Court of Appeals’ decision to the North Carolina Supreme Court which, on November 6, 2015, by a 4 to 2 decision, reversed the Court of Appeals’ Order to Vacate and re-instated Mr. Packigham’s conviction. The state supreme court held the statute to be constitutional in all respects since it proscribes only conduct (access to a social networking site) rather than speech and that the impact on an individual registrant’s speech was merely incidental to this prohibition on conduct.

While the Writ for Certiorari has not yet been granted, the United States Supreme Court appears interested enough in hearing the state’s response, which it formally requested on April 28, 2016. The state has until May 31 to respond so it’s impossible to know at this time either how the state will respond or when the Court might reschedule the Petition for conference.

Packingham’s petition summarizes that the chief question before the Court is “whether, under this Court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to ‘access’ a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is ‘know[n]’ to allow minors to have accounts, is permissible, both on its face and as applied to petitioner – who was convicted based on a Facebook ‘post’ in which he celebrated dismissal of a traffic ticket, declaring ‘God is Good!’”

The Petition for Writ surmises that this case requires the Supreme Court’s intervention because 1) the NC Supreme Court’s decision contravenes “first principles” of basic constitutional law because of the ruling’s unconventional application of “conduct regulation” and “heightened scrutiny” analyses, and 2) that the decision is in conflict with numerous lower court opinions.

Just a week before the U.S. Supreme Court requested a response from North Carolina, a group of 16 law professors led by Eugene Volokh filed an Amici Curiae on behalf of the petitioner focusing exclusively on the NC Supreme Court’s tortured application of an “ample alternative channels” standard to the statute at issue.

Retired professor of law, David Post, recently explained the rationale behind the professors’ brief in a post for The Volokh Conspiracy blog of the Washington Post. Professor Post argues that the NC Supreme Court’s analysis is absurd because it rests upon the incredulous proposition that websites such as the Pauline Dean network, wral.com, glassdoor.com, or shutterfly are comparable to social networking giants such as Facebook, Twitter, or LinkedIn, and that prohibiting registrants from accessing such sites is no impediment to their First Amendment rights because such “ample alternatives” exist. Professor Post cites to his colleague’s previous explication of the Amicus brief here.

It is, of course, impossible to know whether the U.S. Supreme Court will grant the Writ. It grants very few. In any given year, the Court entertains nearly 8,000 petitions and grants certiorari in less than one percent (about 80). But the fact that the Packingham case was originally scheduled for conference on May 12 and then removed from the calendar consequent to the Amicus filing, quickly followed by the Court’s official request for a response from the state of North Carolina, at the very least provides surety that the Court is paying significant attention to the important constitutional questions underlying this Petition.

North Carolina bans registered sex offenders from using or accessing any social networking website that allows under-18-year-olds to post. This includes, of course, the vast bulk of the social networking universe – Facebook, Twitter, Instagram, LinkedIn, Reddit, along with many, many other such sites. The ban is not limited to people who are in prison or on probation or parole (whose First Amendment rights are sharply reduced because of that); it applies even to people who have finished serving their sentences, and who possess, at least in principle, the same First Amendment rights as you and I. Nor is the law limited to sex offenders who had committed crimes against minors (though I think that too would be unconstitutional). Rather, the law makes it a crime for any registered sex offender to either post to such a site or even read it, on the theory that the law is needed “to prevent registered sex offenders from prowling on social media and gathering information about potential child targets.”

There are, as Volokh succinctly put it in the earlier posting, “many First Amendment problems” with the N.C. court’s decision rejecting a challenge to the constitutionality of this prohibition.[**] The amicus brief, though, focused on only one of them: the court’s holding that the prohibition is a “reasonable” restriction on speech because it leaves “ample alternative channels” for the speech of persons covered by the ban. Maybe you can’t post (or even access any posts) on Facebook or Twitter or Instagram or Reddit [or NYTimes.com or the Volokh Conspiracy, for that matter, all of whom allow persons under the age of 18 to post/access) … but “the Web offers numerous alternatives that provide the same or similar services that defendant could access without violating” the statute.

It seems crazy to me — imagine trying to run for public office, or participate in someone else’s campaign for public office, or complain to your City Councilperson, or start a petition drive to get a new streetlight on your corner … without being able to access any of the major social networking sites. Not impossible, sure — but it seems quite far-fetched to suggest that there are “ample alternatives” out there on the Web for you to accomplish these tasks.

Fortunately, we have Supreme Court precedent on our side: City of Ladue v. Gilleo (1994), which invalidated a city ordinance banning homeowners from displaying signs on their property. The city argued that the ordinance left people “free to convey their desired messages by other means, such as hand-held signs, ‘letters, handbills, flyers, telephone calls, newspaper advertisements, bumper stickers, speeches, and neighborhood or community meetings.’” But these alternatives, the court held, were inadequate because they tended to convey a substantively different message, were not as cost-effective or failed to reach the speaker’s intended audience. (Please read David’s full post at Volokh Conspiracy of the Washington Post)

Frustrated by the state’s refusal to offer any facts supporting its “conjectural” and “anecdotal” evidence defending section a(2) of North Carolina’s premises statute (N.C.G.S. § 14-208.18), Senior District Court Judge Beatty ruled on April 22, 2016 that the Does v. Cooper case filed two years ago in the Middle District (federal) Court is resolved without a trial. Having previously struck section a(3) as constitutionally vague, Judge Beatty found a(2) overbroad in burdening the First Amendment rights of registered citizens. Judge Beatty also permanently enjoined the state from prosecuting either under section a(2) or a(3). Judge Beatty had previously ruled section a(1) constitutionally sound (this portion of the statute bans registrants from being “on the premises of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.”).

I found it interesting that Judge Beatty cites the dissent in the recent Packingham case decided by the NC Supreme Court in November (which is presently before the US Supreme Court pending cert). That case had nothing to do with proximity or presence, but Judge Beatty cites to language contained therein regarding the impact of internet restrictions on the First Amendment rights of affected citizens. Indeed, he spends a fair amount of time throughout his Memorandum Opinion and Order rooting his Judgment in cases related more to internet restrictions than presence or proximity restrictions. Judge Beatty makes repeated mention of his surprise at the state’s refusal to provide factually based statistics regarding recidivism. And he signals fairly strongly that he finds the Packingham majority completely out of touch.

I have included some excerpts from the opinion below for those of you who don’t have the time to read the full opinion:

Sex offenders have First Amendment rights. (Id. at 43.) The restrictions in subsection (a)(2) greatly burden those First Amendment rights by inhibiting the ability of restricted sex offenders to go to a wide variety of places associated with First Amendment activity.

North Carolina “may pass valid laws to protect children from abuse, and it has. The prospect of crime, however, by itself does not justify laws suppressing protected speech.” Cf. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245, 122 S. Ct. 1389, 1399, 152 L. Ed. 2d 403 (2002) (internal citations omitted).

Subsection (a)(2) places restrictions on offenders who have never committed a sexual crime against a minor. Moreover, no finding of dangerousness is required for a restricted sex offender to be subjected to subsection (a)(2)’s prohibitions. Merely committing one of the crimes listed in N.C. Gen. Stat. § 14-208.18(c) subjects the individual to the panoply of First Amendment burdens entailed by subsection (a)(2). The mere fact of a conviction of one of the crimes listed in the statute, by itself, is not enough to establish dangerousness to minors.

To use an expression utilized by the District of Nebraska, North Carolina, in this instance, has used a blunderbuss rather than a scalpel in its effort to protect children.

… In fact, Defendants have made no evidentiary showing at all regarding the rate at which sex offenders recidivate.

. . .Defendants’ decision to not provide expert testimony or statistical reports to the Court was somewhat unexpected. Defendants stated at the status conference that it would not be difficult for them to find an expert to support their case. Yet, Defendants chose not to seek out an expert even after repeated inquiries from the Court regarding whether they desired to do so and after the Court expressly stated that it believed that Defendants’ evidentiary offering was inadequate to carry their burden in this case.