I posted previously about State v. Packingham, in which the North Carolina Supreme Court upheld a state statute prohibiting the use of social networking sites by registered sex offenders. In that post, I promised more analysis. Here it is.

The statute at issue in the decision is N.C.G.S. § 14-202.5:

(a) Offense. — It is unlawful for a sex offender who is registered in accordance with Article 27A of Chapter 14 of the General Statutes to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site. (b) For the purposes of this section, a “commercial social networking Web site” is an Internet Web site that meets all of the following requirements: (1) Is operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site. (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 Web site. (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. (c) A commercial social networking Web site does not include an Internet Web site that either: (1) Provides only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform; or (2) Has as its primary purpose the facilitation of commercial transactions involving goods or services between its members or visitors.

Defendant, a registered sex offender, had a Facebook account. At trial, he was convicted of violating § 14-202.5. The Court of Appeals vacated the conviction, and held that the statute violates the First Amendment and is unconstitutional both on its face and as applied. An as-applied challenge contests whether the statute can be constitutionally applied to a particular defendant, even if the statute is otherwise generally enforceable. A facial challenge, by contrast, maintains that no constitutional applications of the statute exist, prohibiting its enforcement in any context.

A split decision of the state Supreme Court disagreed and reversed the decision, upholding the law and the conviction.

The majority reached a number of conclusions that may be attacked on appeal.

The Facial Challenge

First, the opinion concludes based on Hest Techs., Inc. v. State ex rel. Perdue that the statute prohibits conduct, not speech. 366 N.C. 289, 297, 749 S.E.2d 429, 435 (2012). This sets the standard by which the court reviewed the statute. To uphold a statute that regulates speech, the state must show that the regulation is necessary to serve a “compelling” state interest and that it is “narrowly drawn” to achieve that end. A statute that regulates conduct, however, can have an incidental burden on speech so long as it promotes a “substantial” government interest that would be achieved “less effectively” absent the regulation.

In Hest, the Court looked at regulation of video sweepstakes machines (the kind you see in strip mall “cafes”). There, they concluded that statutes regulating sweepstakes games were, in reality, regulating the underlying sweepstakes (conduct), not the game (speech) that announced the result. The court analogizes this to  N.C.G.S. § 14-202.5, writing that “like the statute in Hest, the essential purpose of section 14-202.5 is to limit conduct, specifically the ability of registered sex offenders to access certain carefully-defined Web sites.”

Fundamentally, this conclusion changed the entire analysis from that point forward. If the Court had concluded, instead, that the statute regulates speech, the much more stringent strict scrutiny standard might have led to a different outcome. The prohibited conduct in Hest was, at its heart, gambling. Here, the prohibited conduct is, at its heart, speech and association. In Hest, the speech (the game) facilitated the conduct (gambling). Here, the conduct (joining a network) facilitates the speech (communicating over the network). The dissent asserts:

This statute completely bars registered sex offenders from communicating with others through many widely utilized commercial networking sites. Therefore, in my view, it primarily targets expressive activity usually protected by the First Amendment.

Next, the opinion concludes that the statute is a content neutral-regulation on conduct. Because of this, the level of scrutiny is lower than it would be if it were a content-based regulation on conduct. Accepting the conclusion that this is a regulation on conduct, not speech, there is little room to debate this second conclusion. The statute does not give any heed to the content of the would-be communication. Interestingly, the trial court found, and no party challenged, that the purpose of the statute was protection of minors from sex offenders. A separate law, which is not content neutral, regulates this conduct specifically. North Carolina G.S. § 14-202.5 criminalizes the solicitation of a child for sex through use of a computer.

In applying the intermediate scrutiny standard, the Court looks to United States v. O’Brien. In O’Brien the defendant claimed the statute forbidding destruction of his Selective Service registration card was unconstitutional as applied because it violated his right to free speech. 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). The U.S. Supreme Court articulated a four part test to apply in situations where the ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct.

Importantly, the dissent points out that the ban on burning a draft card in O’Brien had a “communicative element.” The dissent suggests that O’Brien should apply only where the restriction targets expressive conduct. Here, the dissent argues, the statute necessarily burdens speech directly, and the O’Brien test is irrelevant. Still, the majority opinion does discuss the factors, and so will I.

The first two factors were not disputed. First, the statute must be within the constitutional power of the Government, which this clearly is. Second, it must further an important or substantial governmental interest. The interest here is protecting kids online from predators, which is indisputably important.

The third factor requires that the governmental interest be unrelated to the suppression of free expression. The Court concluded, in part because of the existence of the separate law prohibiting solicitation (which is related to free expression), that the interest in protecting children was not related to suppression of speech.

The fourth factor is whether incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. This factor tests not whether this is the “least restrictive means,” but whether it is “narrowly tailored to serve a significant government interest.” Narrow tailoring, the opinion explains, requires that the government demonstrate that alternative measures that burden substantially less speech would not achieve the government’s interest.

The defendant argued that the statute was not narrowly tailored:

… defendant contends (1) that the statute’s definition of a “commercial social networking Web site” is overbroad, (2) that the statute does not take into account the underlying offense of conviction or the likelihood of recidivism, (3) that the statute does not require criminal intent, (4) that the statute is underinclusive because, inter alia, it applies only to commercial Web sites, (5) that less burdensome laws already exist to protect children from baleful Internet contacts, and (6) that sufficient alternatives allowing communication do not exist.

(numbering added)

The opinion does not address each of these arguments. Instead, it focuses on the definitional arguments in (1) and (4), and the alternatives argument in (6). This is important. It may be that the Court simply felt that the others were not worth considering. Indeed, there is no First Amendment jurisprudence suggesting that under any standard the statute would need to consider recidivism. Still, it would have been nice to see each argument addressed.

The opinion discusses, at some length, the statute’s definition of a social networking website. In short, the statute defines such sites as those that: (1) derive revenue from their operations, (2) facilitate social introduction between persons, (3) allow personal pages or profiles with names, nicknames, photographs, etc., and links to other friends’ or associates’ pages, and (4) provide users mechanisms to communicate with each other. The carve-out excludes from that definition sites that either: (1) provide only one service of: photo-sharing, e-mail, messaging, chat, or boards, or (2) have the primary purpose of commercial transactions.

The criteria and the carve-out, according to the opinion, demonstrate that the legislature “has carefully tailored” the statute. But there have been other First Amendment cases that examined statutes with what appeared at first to be a specific list, with a few carve-outs, targeted at deplorable conduct (think: U.S. v Stevens). Just because the statute appears to be “carefully” tailored, doesn’t mean it was “narrowly” tailored.

The opinion also gives a lot of weight to the knowledge requirement, which says that to convict, the State has to prove that “the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.” The opinion – essentially – imputes knowledge to users of various sites based on those sites’ terms of service. It also calls out a number of sites that are perfectly acceptable for registered sex offenders to use, because the terms of those sites require users to be 18 (look out Paula Deen Network).

Those of us that draft terms of service know that every.single.user. reads and understands them… The Court writes:

While we leave for another day the question whether a site’s terms of use alone are sufficient as a matter of law to impute knowledge of the site’s limitations on access to a registrant, such terms of use provide specific and pertinent information to a registered sex offender seeking lawful access to the Internet.

After the number of words devoted to discussion of terms of service, and using them to bolster both the argument that the offender has knowledge and that the offender has sufficient alternative channels of communication, this seems like a punt. It may well be that individual persons accused under this law could be shown to have read the terms, seen that users under 18 were or were not allowed, and then decided to proceed to the site. But, this is a facial challenge, not as applied in individual circumstances.

The Court concluded that the statute is narrowly tailored, and therefore facially valid. The dissent, by contrast, concludes that the statute burdens substantially more speech than necessary. Because I don’t think I can say it better than the dissent, I’ve included most of its reasoning here:

First, the statute as written sweeps too broadly regarding who is subject to its prohibitions. As noted, the State’s interest here is in protecting minors from registered sex offenders using the Internet. However, this statute applies to all registered offenders. . . . The statute is not restricted in application only to those whose offenses harmed a minor or in some way involved a computer or the Internet, nor to those who have been shown to be particularly violent, dangerous, or likely to reoffend. This statute therefore groups together, without distinction, offenders whose history and past conduct directly implicate the State’s concerns with those who do not. To the extent the statute does so, it “burden[s] . . . more speech than necessary to achieve the [State’s] interests.” McCullen, ___ U.S. at ___, 134 S. Ct. at 2537.

Second, as written, the statute also sweeps far too broadly regarding the activity it prohibits. The majority asserts that the statute prohibits “registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information about minors.” But in fact, the statute contains no such limitation. . . . I note in particular that the statute’s description of a “personal profile[ ],” and the language “such as” when referring to the information that can appear in such profiles, could bring within the statute’s scope many websites that allow users to register by going through the minimal process of creating a username and adding an email address or telephone number. As a result, this definition clearly includes sites that are normally thought of as “social networking” sites, like Facebook, Google+, LinkedIn, Instagram, Reddit, and MySpace. However, the statute also likely includes sites like Foodnetwork.com, and even news sites like the websites for The New York Times and North Carolina’s own News & Observer. See The News & Observer Terms of Service, http://www.newsobserver.com/customer-service/terms-of-service/ (last visited Oct. 22, 2015) (stating that “[i]f you are under eighteen (18) then you may only use NewsObserver.com with the consent of a parent or legal guardian” but not limiting registration on the site to adults). Most strikingly, the statute may even bar all registered offenders from visiting the sites of Internet giants like Amazon and Google.

In short, however legitimate—even compelling—the State’s interest in protecting children might be, the plausible sweep of the statute as currently written “create[s] a criminal prohibition of alarming breadth,” United States v. Stevens, 559 U.S. 460, 474, 130 S. Ct. 1577, 1588 (2010), and extends well beyond the evils the State seeks to combat. I therefore conclude that N.C.G.S. § 14-202.5 “burden[s] substantially more speech than necessary to achieve the [State’s legitimate] interests,” McCullen, ___ U.S. at ___, 134 S. Ct. at 2537, and cannot survive even the intermediate scrutiny applied to content-neutral restrictions on speech.

(footnote omitted)

The As-Applied Challenge

In discussing the as-applied challenge, the opinion again turns to terms of service:

Because Facebook does not limit users to those over the age of eighteen and otherwise fits the definition of a commercial social networking Web site set out in N.C.G.S. § 14-202.5, defendant is forbidden to access that site unless the statute is unconstitutional as applied to him

So, if a site’s terms of service limit users to those over 18, it falls outside this statute? Even if it otherwise meets the definition and, in fact, is used by minors (perhaps without the permission of the site)?

In considering whether the incidental restriction on the Defendant in this case was “no greater than is essential to further the government’s interest,” the court again concludes the statute is permissible. The defendant was probably not the best person to bring this challenge:

In ascertaining whether the government’s interest in protecting children from registered sex offenders who are lurking on social networking Web sites and gleaning information on potential targets is furthered by prosecution of this defendant, we observe that defendant has the status of a registered sex offender because he was convicted of indecent liberties with a minor, a sex crime against a child falling directly within the purview of section 14-202.5. Officers who searched his home found a signed written notice advising defendant of sites he could not legally access. Defendant set up his Facebook page under an alias, further indicating his awareness that he was indulging in forbidden behavior while simultaneously hiding his identity from investigators and parents.

(emphasis added)

Were the Defendant on the sex offender registry for a crime that did not involve a minor, or any act of coercion or force, had no notice, and used Facebook under his real name, oblivious to the ban, he would have been a better face for this argument. The opinion concludes that the restriction on this Defendant is no greater than essential to further the interest in protecting children from predators.

Overbreadth

A statute is unconstitutionally overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute’s legitimate sweep. A party raising the challenge must bear the burden of showing from the text of the law, and from the actual facts around the law, that the substantial overbreadth exists.

The opinion references back to its discussion of the definitional portion of the statute in its facial validity discussion. Based on that discussion, the opinion concludes:

Given the reluctance with which courts administer the strong medicine of overbreadth, we conclude section 14-202.5 does not sweep too broadly in preventing registered sex offenders from accessing carefully delineated Web sites where vulnerable youthful users may congregate

In the context of the conclusions the opinion had already reached, it would have been a surprise to see them invalidate for overbreadth. The dissent explains that overbreadth analysis is “very similar to the ‘narrow-tailoring’ inquiry described above: First Amendment overbreadth doctrine requires a court to invalidate a statute that ‘prohibits a substantial amount of protected speech.'” The dissent further explains the analysis, and concludes that the statute is overbroad:

There is, however, one important nuance. Namely, while the Supreme Court of the United States has often invalidated specific applications of statutes under as-applied challenges, that Court has also made clear that First Amendment doctrine specifically permits litigants to make facial challenges based on overbreadth. The Court has even noted that such a challenge is permitted when the challenger’s own conduct would clearly fall within the scope of the statute’s prohibition and the claim is based only on how that statute might apply to the activity of others. In light of this precedent permitting such challenges, and for the reasons noted above, I would hold that the statute at issue here, N.C.G.S. § 14-202.5, is facially overbroad and therefore unconstitutional, regardless of its application in this specific case.

(citations and quotations omitted, emphasis supplied).

I added emphasis to the prior excerpt because I think it is important to remember that, in the context of deciding whether a law that restricts free speech is constitutional, courts are often presented with unsympathetic plaintiffs. Child rapists, animal abusers, cults and others often bring to light the fringes of the law. We need the corner cases, though, or we don’t know the boundaries.

Vagueness

Finally, the opinion discusses the Court of Appeals conclusion that the statute is unconstitutionally vague. Laws must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” This is the opinion’s entire analysis of this point:

The Court of Appeals “assume[d] that persons of ordinary intelligence would likely interpret the statute as prohibiting access to mainstream commercial social networking sites such as Facebook.com.” Packingham, ___ N.C. App. at ___, 748 S.E.2d at 153. Whatever the status of other Web sites, no party disputes that Facebook.com, the site at issue here, falls under N.C.G.S. § 14-202.5’s definition of “commercial social networking Web site.” While an argument may be made that the statutory term “access” could be vague in other contexts, defendant’s logging into his Facebook account and posting a message on his page is unquestionably “accessing” Facebook.com. Defendant’s conduct defeats his vagueness claim

I’m not sure that a single defendant’s conduct should be used to validate the entire statute. I’m not convinced that just because Facebook is clearly prohibited, that a person of ordinary intelligence would understand that The News & Observer’s website is also prohibited.

If the Supreme Court of the United States takes up the issue, it seems likely to me they will strike down the law. Similar provisions in laws in Indiana, Nebraska, Georgia, Utah, California, and Louisiana have been struck down in those states. It’s no secret that the Roberts Court has a strong view of the First Amendment. If this case ever gets to that forum, I think they’re likely to side with Justice Hudson’s dissent and conclude that the majority applied the wrong standard: this is a law regulating speech, not conduct, and should be subject to strict scrutiny.

My wife’s perspective is that all of this is a silly debate; that anyone who is convicted of any sexual act with a minor should receive a summary execution without due process. Then, there would be no need to figure out who should and shouldn’t be allowed to access this-or-that website. But, she didn’t go to law school. “Law school is for softies.”