Mimesis Law
17 January 2018

North Carolina Sex Offenders Get the Social Media Death Penalty

November 4, 2016 (Fault Lines) – Lester Gerard Packingham is a convicted sex offender who just wants to use Facebook. In 2002, Packingham was a 21-year-old student without a criminal record. Then, he took incident liberties with a child under 16 and—not surprisingly—ended up a felon. Although he was originally charged with statutory rape.

After a 10-12 month sentence, he was placed on supervised release for 24 months. He was placed on pretty standard parole-type conditions, such as staying away from young girls and consenting to warrantless searches. And like every other state, he was now required to register as a sex offender.

Except North Carolina had a little wrinkle to the registration; registered sex offenders are prohibited from using commercial social media sites. In its brief, North Carolina summed up the reason for this ban:

North Carolina sought to address the menace of registered sex offenders compensating for lack of direct physical access by seeking out new, unsuspecting victims via “cyberspace.” Through this modern method, a sex offender can remain invisible on a social networking site while gaining intimate and detailed information about children who use the site. Offenders use that information to prey on those children.

There are a lot of scary verbs and adjectives in there. As a parent, I understand the terror of letting your kids onto social media, even if it is just Pinterest. But the sad fact is most child victims know the offender well. Family members make up nearly the same proportion of offenders as do strangers.

Packingham, like most folks nowadays, had to share a momentous event on Facebook. He had a speeding ticket dismissed with no court costs. So, he posted this turn of good fortune on Facebook and because prayer before Zuckerberg, he had to thank God on Facebook or it doesn’t count—or something. A Durham police officer found somehow stumbled across Packingham’s account and post. After a search warrant was executed and turned up bupkis, Packingham was arrested for violating the terms of North Carolina’s social media death penalty.

North Carolina argued that it is not quite the death penalty, as it is not a complete ban from the internet. Instead registered sex offenders are prohibited from visiting sites that facilitate social interaction; they facilitate information exchanges; they allow users to create profiles; they don’t restrict children from participating; and these sites allow people to message one another. In other words, nearly everything aside from FarmersOnly.com is prohibited.

Perhaps that statement is not quite fair, because it allows registrants to use sites with the “primary purpose is the facilitation of commercial transactions involving goods and services….” On the other hand, Judge Kopf had this to say in a case about a similar law in Nebraska:

Whatever else the words of  Neb. Rev. Stat. § 28-322.05 might mean, it is undisputed that those words ban the offenders described in the statute from using ubiquitous utilities such as  MySpace, Facebook, Skype, Twitter, Windows Live Messenger,  and Google+  together with a large number of other utilities.   In order to understand the significance of the ban, it is important to understand the size and overarching presence of “social networking web sites” and “instant messaging” and “chat room” services on the Internet.

This ban precludes the offenders described in the statute from using an enormous portion of the Internet to engage in expressive activity. No reasonable person could deny that fact. The ban not only restricts the exchange of text between adults; it also restricts the exchange of oral and video communication between adults. Moreover, the ban potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors.

But think of the children! One wonders why we let sex offenders drive because they could use a van and a promise of candy to lure kids away. Or why we let them have jobs. Because with a job, you earn money, which you can use to buy a van and candy. It would be prudent to force offenders to live under bridges. It’s a roof over their heads and far too many bridge troll jobs go unfilled every year. That sounds like a win for everyone.

Setting aside the First Amendment issues for a moment, there are some broader issues here. Sex offenders deserve to be punished, and in some cases punished quite harshly. While registries may make parents feel safe, it is probably a false sense of safety.

A registry is cheaper that keeping someone in prison. The public is assured the person is being monitored to some degree. Plus, the offender is kept away from sensitive places like schools. But if the person is a real danger, then conceivably that should be reflected in the sentence imposed. With regard to the registration requirement, there is, unlike sentencing, no individualized risk assessment; so, the registry is not predictive in any meaningful way.

Sex offenders may present a danger of re-offending, but you can say the same about most criminals. But, currently, there are few violent offender registries—though it may become a thing. Perhaps scarlet letters need a rebranding, after Nathaniel Hawthorne ruined them as a form of punishment. And then there is the actual branding of criminals, which would directly inform everyone the offender meets of his or her past crime. You cannot easily hide a brand, unlike how a person can avoid registering.

Certainly, while convicts are in prison or on paper, they should enjoy some reduction in their rights. Obviously, prisoners with firearms would present a serious problem. So, there is a basis for restricting some First Amendment rights. At the termination of the sentence, many states, like Ohio, restore most rights, including relief from some firearm disabilities, to felons. But with the restrictions that go with lifetime registrations requirements, many offenders will never get some rights back. In the case of Packingham, it was his First Amendment rights.

North Carolina’s intermediate court of appeals determined that the statute was vague enough to prohibit accessing Google or Amazon. The North Carolina Supreme court concluded that there was no First Amendment issue and reversed. It deftly avoided the issue by characterizing the restriction as related to conduct rather than speech. David Post compared the Court’s conclusion to one that would say using the telephone is conduct rather than speech. A telephone call without speech would be awkward. Now, Packingham will have his day at the Supreme Court for the United States.

To some degree, the issue in the case turns on what level of scrutiny the court uses. It’s a convenient legal device to keep judges indispensable and lawyers fully employed. It asks reviewing courts to consider a bunch of facts that are not usually the kind of facts juries are asked to find, such as whether there are ample alternative channels available. And judges, Judge Kopf excluded, get to show how out of touch they are by comparing Facebook to the Paula Deen Network.

The more fundamental issue is if we’re going to have lifetime registration for offenders, then what sorts of restrictions should be imposed. North Carolina has decided that, regarding certain offenders, an “enormous portion” of the internet is forever prohibited. We should be more troubled by curtailing constitutional rights for a person’s lifetime. There are probably some folks that deserve it, but there is no wisdom in imposing on a certain class of offenders a social media death penalty.

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  • Will
    13 December 2016 at 8:37 pm - Reply

    All I can say is that the ones combating these draconian laws better have all their evidence together and ready to present in such a manner that it anticipates and amply answers ALL of the potential arguments that could be made in their favor. This ain’t gonna be an easy win by any stretch. What I worry about is the back door influence politicians have over legal proceedings. They can and do pull strings behind the scenes.