“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.

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.

Critical to that determination is the threshold question: Is the challenged government action a regulation of/burden on speech, or is it a regulation of/burden on conduct, with merely an “incidental effect” on speech? The distinction is critical (and often outcome-determinative) because, as the Supreme Court of North Carolina put it in a recent case (State v. Packingham, available here):

. . . a statute that regulates speech is subjected to exacting scrutiny: The State must show that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. . . . In contrast, a regulation that governs conduct while imposing only an incidental burden upon speech must be evaluated in terms of [its] general effect . . . [and] is permissible so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. [internal quotations and citations omitted]

So consider this: North Carolina law (N.C.G.S. § 14-202.5) makes it a criminal offense for anyone previously convicted of a sex offense to:

“access a commercial social networking Web site [that] . . . permits minor children to become members or to create or maintain personal Web pages on the [site].”

The stated purpose of the law is to prevent sex offenders from “gathering information about minors on the Internet.” The statute defines a “commercial social networking Web site” within the statutory access prohibition as an Internet site that

“(1) Is operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site;

(2) Facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges;

(3) Allows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Web site; [and]

(4) Provides users or visitors to the commercial social networking Web site mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.”

There are two statutory exceptions: A site is not a “commercial social networking Web site” if it either:

“(1) Provides only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform; or

(2) Has as its primary purpose the facilitation of commercial transactions involving goods or services between its members or visitors.”

Now, there are, I suppose, many things to be said for and against a statute like this. I’ve made my position clear many times (e.g., here and here): I think statutory schemes like this are ineffective, deeply unfair, counterproductive, cruel and unconstitutional on their face. But reasonable people can disagree, perhaps, about all that.

But one thing I would think we could all agree on is that this is surely a regulation of speech as opposed to conduct. The statute will — and is designed to — constrain people from communicating with other people in certain specified ways. No Facebook, no Instagram, no Twitter, no Pinterest, no Vine, no Tumblr** . . . — whatever else this is, it would hardly seem plausible to suggest that it is not regulating the ability of previously convicted sex offenders to communicate with others. (Please read entire posting at The Washington Post)