By Jenna Jonassen, J.D. Class of 2018 Touro Law Review Associate Editor
Lester Gerard Packingham was convicted under North Carolina state law for something that most people do every single day—posting to his Facebook account. On April 27, 2010, Packingham posted on his Facebook page proclaiming his excitement over the dismissal of a recent traffic violation. He posted: “God is good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court costs, no nothing spent . . . Praise be to GOD, WOW! Thanks JESUS!” While this seemingly innocent post does not appear out of the ordinary for most, the fact that Packingham was a registered sex offender in North Carolina at the time that the post was made subjected him to criminal liability.
In 2002, Packingham was convicted of two counts of statutory rape of a thirteen-year-old child in Cabarrus County, North Carolina. In exchange for a guilty plea, the state lowered Packingham’s charges to “taking indecent liberties with a child” and he was required to register as a sex offender with the state. In accordance with the state’s previously enacted Sex Offender Registration Program and recognizing the potential risk for recidivism of certain classes of sex offenders after they are released from incarceration, the North Carolina legislature enacted § 14-202.5 of the North Carolina General Statutes in 2008, which banned registered sex offenders from utilizing social networking websites in which minor members are able to enroll. When a member of the North Carolina Police Department found Packingham’s Facebook page, listed under an alias but confirmed to be Packingham by his profile picture, and discovered his recent post, the officer obtained a search warrant for Packingham’s residence. The search resulted in the officer’s seizure of evidence that implicated Packingham as the Facebook account holder, as well as, ironically, a signed copy of changes to the North Carolina sex offender laws that were sent to Packingham by the state. Given Packingham’s sex offender status and his use of Facebook.com, the state brought charges against Packingham in September 2010 for violation of § 14-202.5.
In order for a violation to occur under § 14-202.5, classified as a Class I felony, the state is required to prove that the registered offender knew that the site allowed minor users to register, that the offense was committed within the state, and that the site used meets all of the following criteria:
1. Is operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Website.
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 Website.
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.
Sites devoted specifically to commercial transactions, or those with limited capabilities, such as photo-sharing, electronic mail, or instant messenger, for example, are specifically excluded from the statute’s reach.
At a pre-trial hearing, Packingham moved to dismiss the charges against him on the grounds that § 14-202.5 violated his constitutional rights to free speech and association as guaranteed under both the First Amendment to the United States Constitution and Article I, § 14 of the North Carolina State Constitution. The North Carolina Superior Court of Dunham County denied Packingham’s motion to dismiss and found that the statute was constitutional as applied to Packingham; however, due to jurisdictional issues, the court failed to determine whether the statute was constitutional on its face. As a result, Packingham’s case went to trial and he was found guilty of accessing commercial social networking sites in violation of § 14-202.5 and sentenced to six to eight months imprisonment with twelve months of supervised probation.
On appeal to the Court of Appeals of North Carolina, Packingham alleged that § 14-202.5 was unconstitutional due to its overbreadth, vagueness, and failure to be narrowly tailored to a legitimate government interest. In finding that the statute was content-neutral, the North Carolina Court of Appeals determined that the statute must withstand intermediate scrutiny, which requires it to be “narrowly tailored to achieve a significant governmental interest” while still “leav[ing] open ample alternative channels for communication of the information.” The court found that § 14-202.5 was not narrowly tailored because it treated all sex offenders equally, despite potential differences in offenses and the likelihood of recidivism—subclasses which the North Carolina legislature specifically intended to differentiate between when they enacted § 14-202.5. Specifically, the court held that “the statute is not narrowly tailored because it fails to target those offenders who ‘pose a factually based risk to children through the use or threatened use of the banned sites or services’” and “burdens more people than necessary to achieve its purported goal.”
Further, the court held that the statute was unconstitutionally vague because it “lacks clarity” and “certainly fails to give people of ordinary intelligence fair notice of what is prohibited.” While offenders would understand that sites resembling Facebook and Myspace would be prohibited under this law, they might not be aware that the language of § 14-205.5 also prohibits visitation of sites like Google and Amazon. Though seemingly innocent, these sites also generate revenue from advertising, allow for social interaction between people, and allow minors to create user profiles, qualifying them as prohibited under the statute even though these sites might not even necessarily be frequented by minors. Having further issue with the language of § 14-202.5, the court indicated that the statute’s general prohibition on “access” to commercial networking sites would actually make it unlawful for sex offenders in North Carolina to even happen upon a prohibited site or log-in to social networking accounts that may have been established prior to being registered as a sex offender.
However, upon the State’s request for review, the court reversed the judgment of the North Carolina Court of Appeals. Relying on the United States Supreme Court’s decision in United States v. O’Brien, the court applied a four-factor test to determine whether Section 14-202.5 was “sufficiently justified” under intermediate scrutiny. Applying this test, the court found that the statute’s enactment was within the power of the North Carolina legislature and satisfied a significant governmental interest in keeping recidivism rates for registered sex offenders low. While the court determined that Section 14-202.5 could have been drawn more narrowly, the court ultimately held that the statute was sufficiently narrow to further the governmental interest without more than incidental constitutional implications. For example, although many sites would fall within the ambit of those prohibited by the statute, the court determined that there were also enough sites that would not be prohibited by Section 14-202.5 that served virtually similar purposes. Therefore, the court held that the statute is not unreasonable and is thus constitutional both facially and as applied. The court stated that the government’s interest was entirely too important to “invalidate [this] statute on its face.”
The Supreme Court of the United States granted certiorari of Packingham’s appeal on October 28, 2016, to consider whether the North Carolina statute under which Packingham was convicted is unconstitutional both facially and as applied. Though the Supreme Court has yet to render a decision, oral arguments were made by both parties on February 27, 2017. Analysis of these arguments revealed that the Justices had a difficult time accepting the implications that the North Carolina statute had on First Amendment freedoms. Specifically, Justice Kagan noted that the implications of Section 14-202.5 would prohibit registered sex offenders from being able to access political information from Twitter, which was deemed to be a “crucially important channel of political communication.” Justice Kagan further noted that sites like Facebook and Twitter have “become incredibly important parts” of social, religious, and political culture as they have been “embedded in our culture as ways to communicate and ways to exercise constitutional rights.” Justice Ginsburg agreed that social networking sites make up a “very large part of the marketplace in ideas” and Justice Alito even expressed similar concerns, indicating that “there are people who think life is not possible without Twitter and Facebook.” However, the Supreme Court Justices were not shy in pointing out that they previously allowed the states to impose other restrictions on the fundamental rights of convicted criminals, and that restricting First Amendment rights for registered sex offenders would not be dissimilar.
Though a decision by the United States Supreme Court is forthcoming, the Justices’ responses to the petitioner and the respondent’s oral arguments make it clear that technological innovations have become so ingrained in our culture that constitutional restrictions on our use of it would speak to the very essence of who we are. Though the Supreme Court has previously allowed the states to restrict the constitutional rights of convicted criminals, North Carolina law provides that sex offenders must remain registered with the state for even non-violent sexual offenses for 30 years from the initial date of registration. This means that sex offenders would be subject to these significant social restrictions for the majority of their lives. While the concern for recidivism for sexually-based offenses toward minors is, of course, a significant governmental and public concern, the question remains whether the government is at liberty to almost permanently restrict individuals from these publicly-accessible channels of information on which our generation relies without substantial constitutional implications.
 State v. Packingham, 777 S.E.2d 738, 749 (2015).
 Id. at 742.
 Brief for Respondent at 8, Packingham v. North Carolina, 137 S. Ct. 368 (2016) (No. 15-1194), http://www.scotusblog.com/wp-content/uploads/2016/07/15-1194-BIO.pdf.
 N.C. Gen. Stat. § 14-208.5 (referring generally to Chapter 14, Article 27a of the North Carolina General Statutes titled Sex Offender and Public Protection Registration Programs).
 N.C. Gen. Stat. § 14-202.5.
 Packingham, 777 S.E.2d at 742.
 Brief for Respondent, supra note 5, at 9.
 Packingham, 777 S.E.2d at 742.
 N.C. Gen. Stat. § 14-202.5(e).
 N.C. Gen. Stat. § 14-202.5(a).
 N.C. Gen. Stat. § 14-202.5(d).
 N.C. Gen. Stat. § 14-202.5(b).
 N.C. Gen. Stat. § 14-202.5(c).
 State v. Packingham, 777 S.E.2d 738, 742 (2015).
 U.S. Const. amend. I.
 N.C. Const. art I, § 14.
 Packingham, 777 S.E.2d at 742.
 State v. Packingham, 748 S.E.2d 146, 149 (N.C. App. 2013).
 The court determined that this statute was content-neutral because it restricted an individual’s access to certain social networking sites without commenting on the type of speech found on those sites. Id. at 150 (referring to State v. Petersilie, 334 N.C. 169, 183 (1993)). As a general rule, the court indicated that content-neutral regulations must be evaluated under intermediate scrutiny, while other types of regulations on free speech that are more content-specific are subject to a more exacting standard. Id.
 Id. at 150.
 Id. at 152.
 Packingham, 748 S.E.2d 146 at 152.
 Id. at 153.
 Id. at 153-54.
 State v. Packingham, 777 S.E.2d 738, 741 (2015).
 United States v. O’Brien, 391 U.S. 367 (1968).
 Packingham, 777 S.E.2d 738 at 746. The court identified the relevant factors of this test to be 1) whether the statute was in the constitutional power of the Government; 2) whether the statute furthered a substantial governmental interest; 3) whether that government interest was related to the suppression of free expression; and 4) whether the statute is narrowly tailored to further that governmental interest without implication on First Amendment guarantees being greater than required in order to further that interest. Id.
 Id. at 744.
 Id. at 747.
 Id. at 748, 750.
 State v. Packingham, 777 S.E.2d 738, 751 (2015) (internal citations omitted).
 Supreme Court of the United States, SCOTUS blog, http://www.scotusblog.com/case-files/cases/packingham-v-north-carolina/ (last visited Mar. 22, 2017).
 See Transcript of Oral Argument, Packingham v. North Carolina, 137 S. Ct. 368 (2016) (No. 15-1194), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-1194_0861.pdf.
 Id. at 28.
 Id. at 32.
 Id. at 47.
 Id. at 54.
 Transcript of Oral Argument, supra note 40, at 4-5.
 State v. Packingham, 748 S.E.2d 146, 148 (N.C. App. 2013).