The State of North Carolina does not believe registered sex offenders should enjoy access to social media. State lawmakers made this clear in 2008 when they passed a law banning the use of social networking websites by registered sex offenders.
That brings us to the case of Lester Gerard Packingham.
In 2010, the Durham Police Department (DPD) launched an investigation to determine if any registered sex offenders in Durham were illegally accessing “commercial social networking” websites. Violation of the statute can result in a penalty up to 10 years in prison.
As of October 31, 2016, there were 304 registered sex offenders living in Durham. We do not know how many such offenders were registered in Durham in 2010.
What we do know is that, at age 21, Packingham was charged with having sexual contact with a 13-year old girl. He was convicted in 2002 for this sex offense in Cabarrus County, North Carolina. He subsequently registered as a sex offender in Durham.
Convicted Sex Offender on Facebook
In April 2010, Packingham logged onto his Facebook account with his username “J.r. Gerrard.” The DPD determined that the account belonged to Packingham.
In September 2010, Packingham was indicted by a Durham County grand jury for violating the statute prohibiting the use of social media by registered sex offenders. Three months later Packingham’s attorney, Glenn Gerding, filed a motion challenging the constitutionality of the statute on its face and as it applied to his client. The trial court denied the motion in April 2011.
In May 2012, a jury found Packingham guilty on one count of accessing a commercial social networking website. The trial judge subsequently sentenced him to six to eight months in prison, suspended the sentence to 12 months, and ordered him placed on supervised probation.
Packingham appealed his conviction and sentence to an intermediate Court of Appeals, continuing the constitutional challenge of the social media ban made at the trial court level.
First Amendment and Access to Social Media
In 2013, the appeals court held that the statute “plainly involves defendant’s First Amendment rights … because it bans the freedom of speech and association via social media.” Although the court acknowledged the State’s legitimate interest in protecting children from sex offenders, the three-judge panel found the statute “is not narrowly tailored, is vague, and fails to target the ‘evil’ it is intended to rectify” because it “arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal.”
The appeals court reversed Packingham’s conviction.
The State sought, and was granted, discretionary review by the North Carolina Supreme Court in November 2013.
In November 2015, the Supreme Court reversed the findings by the Court of Appeals and reinstated Packingham’s conviction. The court found that the statute “is narrowly tailored to serve a substantial governmental interest, and leaves available ample alternative channels of communication.”
Throughout the North Carolina appellate process, Gerding stressed the First Amendment protections. The former JAG attorney told the appeals court “the state is telling people they cannot engage in speech before the speech is even made.”
The State, through its Assistant Attorney General David Elliott, countered with the argument that “the analogy is a restriction that keeps a sex offender from going to a school … it’s a regulation on where they can go, not on what they can say.”
US Supreme Court Agrees to Hear Case
On October 28, 2016, the U.S. Supreme Court granted Gerding’s request for certiorari review. The nation’s highest court will decide this Term which argument is the most persuasive.
Social media has become a critical tool for both association and speech in today’s ever-evolving society. It is difficult for many users to imagine life without it. While we agree, as the Court of Appeals noted, that the State has a legitimate interest in protecting children, this interest cannot be a guise to undermine the speech protections in the First Amendment. It will be interesting to see where the high court comes down on this sticky issue.