To post or not to post - that is the question

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By Marie E. Matyjaszek

Lester G. Packingham Jr. is a registered sex offender in the state of North Carolina, with a 2002 conviction for taking indecent liberties with a minor. Six years after his conviction, North Carolina passed a law that made it a felony for registered sex offenders to utilize social media – such as Facebook – if the offender knows that the particular social media allows minor children to join as well.  The intended goal of the law was to shield children from would-be predators.

After prevailing on a traffic ticket matter in 2010, Packingham decided to post about his win on Facebook. A dutiful police officer also was on Facebook, looking for possible violators of the law, and he found several, including Packingham. The state was not shy about prosecuting people for violations of the statute – it had done more than 1,000 times.  Packingham was subsequently convicted of violating the statute.

Packingham appealed, arguing that the law was unconstitutional as it infringed on one’s First Amendment rights. The North Carolina Court of Appeals agreed with him, but the Supreme Court of North Carolina reversed that ruling.  The case worked its way up to the U.S. Supreme Court, which issued its decision on June 19.

SCOTUS reversed the Supreme Court of North Carolina, and agreed with Packingham that the statute violates one’s First Amendment rights. The Court noted that cyberspace, which includes social media, constitutes one of “the most important places…for the exchange of views.” It opined that the North Carolina law “with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” 

Put simply, the Supreme Court held that the law was too broad to serve North Carolina’s purpose of protecting children from sexual predators. Effectively, it banned registered sex offenders from use of Facebook, Linked In, and Twitter, all of which may be instrumental in providing access to employment opportunities and legitimate non-criminal interests.

The Supreme Court made it clear that “specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime,” would be assumed to not be in violation of the First Amendment.  This law, however, did not fit that description, and was held invalid, thereby offering Packingham another opportunity to trumpet a legal “victory.”

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The author is an Attorney Referee at the Washtenaw County Friend of the Court; however, the views expressed in this column are her own.  Her blog site is: http://legalbling.blogspot.com. She can be reached at matyjasz@hotmail.com. 
 

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