If you have any compassion for your fellow man, or any concern for civil rights, human rights and justice, it behooves you to read David Feige’s well-timed op-ed column (New York Times, Sept. 12, 2017) https://www.nytimes.com/2017/09/12/opinion/when-junk-science-about-sex-offenders-infects-the-supreme-court.html and to view the accompanying eight minute video which addresses the distorted stereotyping of citizens labeled as sex offenders as well as the concomitant explosion of sex offender legislation https://narsol.org/2017/09/breaking-the-frightening-and-high-myth/. 

It is unfathomable that the highest Court in our nation relied on false information by which to support sex offender legislation. Support of such legislation, based on fear and inaccurate information over and above actual facts, is an affront to human rights, human decency, and to the livelihoods of our nation’s registered citizens and their families.

Mr. Feige emphasizes that in the coming months new cases before our highest court provide ample opportunity for re-examination of real evidence and real data. It follows that our state (and others) should do the same. Reliance by our highest Court on the falsehoods of an article published in a 1986 edition of Psychology Today (e.g. that recidivism rates of sex offenders are “frightening and high”), and to base laws on this falsehood is, by itself, perverse and ominous. There is numerous reputable research indicating that sex offender recidivism rates are quite low; on average about 3%. To base our nation’s laws on this “junk science,” to devastate a person’s ability to live in the community, to hold a job, and to provide a livelihood for himself and family, all these things are an affront to human decency, and no less our Constitution.

In re-examining sex offender registration laws, the Supreme Court and North Carolina must ask: What evidence exists to support them as valid and effective? Who are they for? Do they really keep children safer? What impact do they have on our citizens, our communities, and our businesses? Is there a political agenda here? Anyone who professes to legislate on behalf of our children’s safety is likely to get a vote, but fear-based laws based on false information, steeped in hysteria and ignorance, do more harm than good. We have only to look at Japanese internment camps during World War II for an example of how hysteria corrupts sound, constitutional law.

North Carolina doesn’t really have to wait for the Supreme Court to rights its wrong. It’s time our state set a good example for the nation to follow. We don’t need another HB2, another Packingham, or another Does v. Cooper to force us to do the right thing. North Carolina can reform its image, and, more importantly, take the higher ground by deciding to set a precedence of inclusiveness, by respecting the rights of all its citizens, and by allowing people who have committed crimes the opportunity to reintegrate and rejoin our communities as they demonstrate adherence to just and rational laws. Ostracization and exclusion only serve to breed more crime and dependence, not growth or productivity.

It’s my fervent hope that next September, the North Carolina Mountain State Fair will welcome ALL the citizens of North Carolina to celebrate the wondrous bounties of its state. As abundant flowers draw the honey bee, laws that promote civil rights and human dignity foster growth and resilience.

It’s no joke.

This most recent Monday a UNANIMOUS Supreme Court declared unconstitutional a 2008 law that banned convicted sex offenders visiting social-networking websites that allow minors to become members or to create personal pages – including Facebook, Twitter, Instagram, or Capitol Broadcasting’s WRAL.com.

The unfortunate reality about the law the high court struck down is the laudable goal of protecting young children from sexual predators was overshadowed by enthusiasm for the upcoming general election and a desire to demonstrate candidates’ toughness and law-and-order bonafides. Little good comes from laws that have a genesis in election-year pandering. It is a truth that wears no partisan label.

The Senate bill was passed into law without a single dissenting vote in late summer 2008, amid campaigning for the general election. Sponsors included Walter Dalton, a Democrat running that year for lieutenant governor; Janet Cowell, a Democrat who was running for State Treasurer; Kay Hagan, a Democrat who later would successfully run for the U.S. Senate; as well as prominent Republicans like Tom Apodaca, who would become the powerful Senate Rules Committee chairman and Jerry Tillman who now chairs the Senate’s Finance Committee and the Joint State Lottery Oversight Committee.

The election-year posturing didn’t end with the elections of 2008. In November 2015, it was former State Supreme Court Justice Bob Edmunds, a Republican who was on the ballot for re-election, who wrote the wrong-headed state court opinion that upheld the law. He was proud enough to even brag about it: “You don’t have to guess what kind of justice I will be. My record is an open book,” Edmunds said in a campaign video citing the ruling he wrote. To their credit, two state justices — Cheri Beasley and Robin Hudson — dissented.

Democrat Roy Cooper, who was getting ready for his successful run for governor, hopped on the band wagon a year before the 2016 election: “I pushed for this law. … I am pleased that the (state Supreme) Court has agreed with our arguments to keep this law in place.” Cooper’s office didn’t issue any statement Monday, following the U.S. Supreme Court’s unanimous rejection of the law.

The ruling from the highest court of the land shouldn’t come as a surprise. To its credit, a three-judge panel (Rick Elmore, Chris Dillon and Martha Geer) of the State Court of Appeals in August 2013 ruled the law unconstitutional – and it was not a popular ruling.

In the more than eight years since the unconstitutional law went into effect the state has prosecuted more than 1,000 people for violating it, according to the U.S. Supreme Court’s opinion.

The plaintiff in this case, Lester Packingham, did nothing more than take to Facebook to post a thanks for getting a parking ticket dismissed.

It has taken nine years and four months for this bad law to have made its way through the legislative and legal process. The wasted time and money in the process, easily and sadly, amounts to millions – funds much better spent on enforcement and treatment of victims and perpetrators.

With the now clear guidance from the courts, state officials should take a more patient and thoughtful look at how to develop laws that provide access to appropriate online resources to those who are registered sex offenders. Just as important, these laws should include effective and legal ways to thwart sexual predators from inappropriate contact with youngsters via the internet and other cyber-avenues.

Since a new majority took control in 2011, more than a dozen laws passed by the General Assembly have been struck down by the federal courts. It is a sorry record that reflects a reckless disregard for our Constitution in favor of petty partisanship and the unbending desire to impose a rigid ideology on the state.

It is a wasteful pastime that gains nothing and leaves innocent victims in the wake.

If the politicians in office cannot restrain themselves from enacting unconstitutional laws, voters need to pick new ones who can.

Source: Editorial #8176, Capitol Broadcasting Corporation.

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.

…………………………………………………………………………………………………

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)

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)

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)