Our Opinion: Sex offenders’ social media ban needs a rewrite

Not all sex offenders are created equal.

A well-intentioned but overreaching state law barring registered sex offenders from using Facebook, Twitter and other forms of social media — whether or not their crimes involved either children or the internet — is headed for the U.S. Supreme Court.

Durham resident Lester Gerard Packingham appealed his 2012 conviction of maintaining a social media profile as a sex offender, arguing that the state law is unconstitutional. The N.C. Court of Appeals agreed with Packingham in August 2013, but the state Supreme Court upheld the statute last year in a 4-2 ruling.

The federal high court agreed last month to let Packingham plead his case that the law violates the First Amendment by squelching ex-convicts’ online speech.

Under N.C. General Statute 14-202.5, sex offenders are prohibited from accessing commercial social networking websites that extend membership to minors. That sounds reasonable and necessary for pedophiles, but it’s a head-scratcher for offenders who have groped or sexually assaulted other adults.

Writing for a unanimous three-judge panel, Court of Appeals Judge Rick Elmore wrote in 2013 that the vague law “fails to target the ‘evil’ it is intended to rectify” — namely, child sexual predators trolling the internet for their next victim.

The state Supreme Court reversed the appellate panel, finding that the law regulated conduct rather than speech and that its definition of verboten websites left offenders with “ample alternative channels for communication.” Justices even provided examples, including recipe-sharing sites, job boards and a television news station’s website.

There’s likely to be a lot of legal hairsplitting over the state court’s “ample alternative channels” language, which is also the focal point of a friend-of-the-court brief filed by First Amendment scholar Eugene Volokh.

Rather than getting into the weeds of that technical argument, we’ll appeal instead to common sense. What good does it do to arbitrarily ban all sex offenders from Facebook when most of those convicts have no interest in scoping out young users?

Registered sex offenders are about as reviled as any category of criminal. But the same label applied to rapists and child molesters is also used to tag teenagers who share racy photos or are punished for sexual relationships with slightly younger classmates.

Not only is North Carolina able to distinguish the former from the latter, it already does. The state applies the term “sexually violent predator” to those convicted of certain crimes and “recidivist” to those who reoffend. Those designations are included on the publicly searchable sex offender registry.

Instead of wasting taxpayer money to defend a carelessly crafted law in the nation’s highest court, why not revise the statute to exclude only child sexual predators from social networking sites?

Lawmakers have two choices: Stand behind sloppy work and risk a ruling that could open the floodgates to all sex offenders or fix their mistake and protect children by shutting out those who pose a genuine danger.  (Source)

When before, when else today is it not only okay but standard operating procedure to subject a group as a whole to obloquy? Add to that these commentators have for the most part an absolutely indestructible ignorance, one with a focused frame of reference which includes a few outlier cases, the Kankas, the Wetterlings. The news stories that made the most sensational news, that everyone agreed with one another, ‘those sickos need to die.’

Yet most of us on the registry are not outliers, we did not “sexually abuse” but had a case of an age difference the law does not allow; we were not “child molesters” but a 9 year old and an 8 year old playing doctor; we did not display “publicly lewd and lascivious behavior” but needed to urinate by the side of a road for a lack of a restroom; we did not “kidnap” but held someone up who had been hit by a car, then lecture this young person on the dangers of playing so close to the road.

I had my jaw broken in prison because someone heard “sex offender” and spread the word. The attack came by surprise, though I had expected it for months. The prison awarded the inmates who attacked me with new housing and fresh pillows, and a few words of encouragement. Both got to keep their parole dates. I got shipped out to ad-seg for 90 days for being “out of place” on my own housing unit.

It would be satisfying to see courtrooms become places in which compassion and an attempt to understand the motives behind an act and the result from potentially years in prison were considered. Today we have arrived at a point at which fast-tracked legislation includes strict liability laws no room for interpretation of mens rea. The powers of judiciary and legislative over-lap, perhaps, when judges have no ability to think about how to implement a law, and when prosecutors are playing a game to see who can snuff the greatest number of bad guys, and the cops are charging folks with crimes with the same sort of prejudice we can all see, smell and hear all over the net and the television. People are simply doing what they believe other people want them to do, and what they have to do in the face of so many ‘sick and deranged pedophiles’ running around abducting children.

What is terrifying, really and truly, is the way in which those sex offenders enduring the stigma of Megan’s Law are being scape-goated for behavior not only have they not committed, but which they might possibly commit in the future and might have done in their past. In the news of might have done, a distraught father discussed the shooting of his son by person(s) unknown, then links the murder to the likelihood of it being a sex offender. Just because. As for might have done, when are we going to get it across to folks that not everyone’s past is as sinful as the papers would have them believe? Since news is largely entertainment, and since feelings of disgust and hatred are extremely easy to conjure up,  news stories give people that nice mix of hatred to stew upon, and they come back for more.

To be fair, it is not always a simple matter to discern fact from opinion – in fact, the two are marvelously interwoven; now eggs are good, now not so much. This guy is a father of two, now he is a horrific monster who took family photographs, one of which was of his kids bathing.

The fact is that facts are laid out in a manner to convince us that we ought be of another mind, and opposition is created. Instead of rightly seeing how we can agree, contrarianism reigns, for peace is difficult and war easy. Let us not call opinion fiction. Maybe the point is none of us knows.

Sometimes a good feeling arises from feeling the enemy has been beaten down. But what of when we are the enemy? Reading a recent YouTube comment about a “sexual predator” nearing his mandatory release from prison, the author saw a gushing wave of criticism, hate and filth directed at the man in question, but more generally, a group with which he has been largely associated.

No matter your feelings on his crime, whether you sympathize after having been bum-rushed yourself by an aggressive police-force, or sustain a lively hatred for those people charged with lewd behavior around a child, a general question arises, and we need not an answer, but questions, plural.
a) Do we have a way to forgive when we do not understand?
b) Need we understand in order to forgive,
c) and lastly, do we need to forgive in order to live and let another (wo)man live?

So for instance, this video seemed to bring out some unfavorable commentary from a keyboard vigilante, and to which recently the author responded to as a newly established vigilant citizen. Read, digest, then come up with some citations you might include. People actually open up to education, even the ones who talk about killing and pedophiles needed the gas chamber.

You will please note the desire of ‘Martell Tha Cool’ in the link above to present himself as a gun-wielding-child-savior-man-of-invincible-ignorance, an ignorance protected by the mob mentality which we have allowed and continue to allow by responding with feelings we pretend are facts. I’ll give him credit, there are a lot of things I do not understand, and yet I have never felt my uninformed, decisive conclusions about entire groups worthy of posting to the world at large. But, lucky us, Martell Tha Cool feels just such gumption, expressing his desire to put some lead in the heads of some, well, you know, the much derided sex offenders.

So what do we do? Well, let’s scroll to the bottom where the denizens deride registered citizens, conflating crimes and amalgamating titles so that a sexual offender is now a non-entity, a creature whose value to others need not be considered, who has signed away all rights, whose family can be castigated with no remorse, who deserves no second look.

Please, if you have time, if you want to help, go out and educate those who look to have the harshest opinions not backed by fact.

Offer the misinformed a second look, a calm perspective shift, because what they do not know can hurt us.

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.

The sweeping order, in a swing state that could play a role in deciding the November presidential election, will enable all felons who have served their prison time and finished parole or probation to register to vote. Most are African-Americans, a core constituency of Democrats, Mr. McAuliffe’s political party.

Amid intensifying national attention over harsh sentencing policies that have disproportionately affected African-Americans, governors and legislatures around the nation have been debating — and often fighting over — moves to restore voting rights for convicted felons.

In Kentucky, Gov. Matt Bevin, a newly elected Republican, recently overturned an order enacted by his Democratic predecessor that was similar to the one Mr. McAuliffe signed Friday. In Maryland, Gov. Larry Hogan, a Republican, vetoed a measure to restore voting rights to convicted felons, but Democrats in the state legislature overrode him in February and an estimated 44,000 former prisoners who are on probation are now eligible to register for voting.

“There’s no question that we’ve had a horrible history in voting rights as relates to African-Americans — we should remedy it,” Mr. McAuliffe said in an interview Thursday, previewing the announcement he made on the steps of Virginia’s Capitol, just yards from where President Abraham Lincoln once addressed freed slaves. “We should do it as soon as we possibly can.”

The action, which Mr. McAuliffe said was justified under an expansive legal interpretation of his executive clemency authority, provoked an immediate backlash from Virginia Republicans. They issued a statement Friday accusing the governor of “political opportunism” and “a transparent effort to win votes.”

“Those who have paid their debts to society should be allowed full participation in society,” said the statement from the party chairman, John Whitbeck. “But there are limits.” He said Mr. McAuliffe was wrong to issue a blanket restoration of rights, even to those who “committed heinous acts of violence.”

There is no way to know how many of the newly eligible voters in Virginia will register. “My message is going to be that I have now done my part,” Mr. McAuliffe said.

Friday’s shift in Virginia is part of a national trend toward restoring voter rights to felons, based in part on the hope that it will aid former prisoners’ re-entry into society. Over the last two decades about 20 states have acted to ease their restrictions, according to the Brennan Center for Justice at New York University.

Only two states — Maine and Vermont — have no voting restrictions on felons. On the other side, 12 states disenfranchise felons after they have completed probation or parole, said Marc Mauer, executive director of the Sentencing Project, a Washington policy organization that advocates restoring felons’ voting rights.

Read full story in The New York Times

I voted today.

I know. What’s the big deal, right? Most Americans exercise the privilege sorta like they wash their cars. Sometimes it’s important. Other times, whatever.

And that’s all it is, you know. A privilege. Yes, it’s 2016. Yes, we talk a good game about self-government and democracy. But voting in American, unlike speech and breeding, still doesn’t rank as “fundamental” in the pantheon of rights, at least not “legally” speaking.

Split hairs, if you wish. But fundamental rights are, well, fundamental. Certainly, they are subject to reasonable limitations and often meted out according to circumstances.

But voting is peculiar.   Either you have a 100% “right” to vote, or you have no vote at all. There’s no “in between.” No gray area. It’s like carrying a driver’s license. You either have one or you don’t. And your “right” to drive quickly comes into focus. Yep. Just a privilege.

The only reasonable way to consider the right to vote fundamental is to declare that it is a birthright to which every human being is guaranteed and that nothing under heaven or devised by man can separate the person from his politic.

Man is, by nature, a political animal. So said Aristotle. And what it’s our nature to be, properly ordered, is inviolably and inextricably the substance of who we are.

In four years I managed five races in Virginia. Three successfully; two not. But in each campaign there came that awkward moment. “So who you gonna vote for, Robin?”

The question was always in jest. Clearly, I’d vote for the candidate for whom I was working. Only problem was, I couldn’t.

I was registered to vote, but I was so determined to remain a North Carolinian (I mean, seriously, WHO would sign up to be Virginian??), that I refused to move my registration.

When it was time to vote, I’d go home. After all, I had a future to consider. I wanted a clean voting record. It was important to my grand plans. I wish it were possible to say why, but I’ve forgotten.

I’ve forgotten a lot of things. I almost forgot why, at some such point in my life, I was so serious about voting and participating in the election process that I actually refused to move my registration to another state.

But I will never forget what it felt like sitting in a jail cell pondering the great losses I faced: ruined reputation, loss of professional life, unfinished law degree, mom’s broken heart . . . and coming to realize that none of them was quite so painful as the thought that I might never be able to vote again.

Nothing ever made me feel as empty, as worthless, as that.

Worse still was that there really was no way of knowing if or when I would ever be allowed to vote again. I was convicted in Virginia (of a speech crime, ironically), and Virginia is known to be one of the toughest states in the nation for restoring the civil rights of the formerly incarcerated.

My home state of North Carolina is kinder, gentler – a land of humility between two mountains of conceit. Once a prisoner has finished his time and completed his probation, voila, his right to vote is automatically restored. No need for a certificate of approval to recover a right that should have never been taken away in the first place.

Yet there remained a problem for me. The trial judge sentenced me to seven years in prison and an “indeterminate” period of probation afterward. Nobody knew exactly what that meant. So the probation officer assigned to my case decided that, in her estimation, “indeterminate” meant 50 years!

This absurdity would take five years and a letter of clarification from the judge to remedy. And even then, I languished away on probation for two more years before I was finally assigned to a probation officer who thought enough was enough. I had spent more time on probation than I had in prison.

Fast forward to Ash Wednesday, 2016. With my forehead smeared black and a little bit of Jesus in my belly, I went home to do some work. After an hour or so, my phone rang. On the other end was my probation officer saying she had great news! My case was closed. I was finally off of probation.

Strange transition. Nothing really changed. As we all know, it’s the sex offender registry that ruins your life….despite it being “no more onerous” than the requirement to register one’s vehicle. I kept waiting to feel something. Anything. Joy? Excitement? Relief?

I called or emailed everyone I thought might care. There was plenty of excitement for them. And I found myself under-whelmed by the question almost all of them asked. “Does this mean you no longer have to register?”

No. It doesn’t mean that at all. In fact, the registration requirement could extend beyond the grave . . . at least the effects of it could and almost certainly will. Hundreds of years from now, people will still be able to Google me. And some poor sap who lives at any of the addresses that my mere presence has contaminated will wonder why his home gets egged.

It wasn’t until the following day that I stumbled upon a mechanism for the catharsis I was seeking. I would register to vote! That would be significant. That would be life-changing. That would help me feel like I was really an American again.

By Monday I felt safe to check the NC Board of Elections’ website. And there it was: My name. My address. My registration number. I was whole again. Or I was as whole as the law would presently allow.

I could hardly put it into words. So I just captured the screen and forwarded it to several of my closest friends. Look at me! I’ve got the franchise! All the miles marched, all the blood spilled, all the lives lost in the long campaign to secure the blessings of liberty rest upon a solitary proposition: a person is nothing and nobody without the right to cast a vote and participate in the processes of government.

And so, as we pay witness to this sordid affair of presidential campaigning, let us consider the possibility of rethinking this business of voting. Isn’t it time, once and for all, to declare it such a fundamental right of human beings that there ought be nothing save death to separate one from the other?