NC Court of Appeals Rules Law Banning Sex Offenders from Social Networks as Unconstitutional

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On Tuesday, a three-judge panel of the North Carolina Court of Appeals struck down a North Carolina law prohibiting registered sex-offenders from using social networks. The appeals court held the law was vague and violates free speech rights. In the same matter the appeals court vacated the additional felony conviction of a registered sex-offender who had been charged for creating a Facebook profile page and accessing the social network.

The attorney on behalf of the defendant argued the 2008 law of North Carolina was not clearly worded to serve a legitimate interest of the government and could also prevent routine internet activity like the use of search engines.

  

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Glenn Gerding, attorney for Lester Gerard Packingham told the court that “When the General Assembly passed the law, it was entirely feel-good and designed to make people feel secure … (they) didn’t even consider how this might be implemented.”

Gerding told WUNC, that in the case of registered sex-offenders, “There doesn’t have to be any proof that they were using it to stalk children or communicate with children … It basically just says if they were a registered sex offender, and they access websites, that was the crime.”

He said, “we do need these protections in place for children.”

But he admitted the right way to do it, and said, “If the courts strike it down, we’ll have to go back to the drawing board and find a way to make sure it is constitutional.”

In its decision, the Court of Appeals, North Carolina, observed the Protect Children From Sexual Predator’s Act, “arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal … (and) violates the First Amendment’s guarantee of free speech, and it is unconstitutional on its face and as applied.”

In an interview, Attorney General Roy Cooper, justified the vague wording of the law, saying, “The law is broad because technology moves fast and we don’t want predators and child pornographers to use legal loopholes.”

However, the appeals court observed the wording of the law was vague enough to be applicable even where a registered sex-offender visited a cooking web site that has secondary social networking pages. The court observed in its opinion, “It is fundamentally impossible to expect an offender, or any other person, to ‘know’ whether he is banned from a particular website prior to ‘accessing’ it.”