Packingham petition offers hope for change at nation’s highest court
By Robin . . . Among the more significant cases concerning registered citizens that have made their way to the United States Supreme Court, few have had as much potential to change the course of appellate review and affirm the First Amendment protections guaranteed to every American citizen than Packingham v. North Carolina (petition No. 15-1194).
After the chief justice extended the time for filing, Atty. Glenn Gerding, counsel for the petitioner, Lester Gerard Packingham, filed a Petition for Certiorari from the North Carolina Supreme Court on March 21, 2016.
Mr. Packingham is a North Carolina registrant who was convicted by a jury in 2011 for accessing Facebook, a commercial networking website which permits minors as registered users. This was a violation of N.C.G.S. § 14-202.5. Before trial, Packingham sought to have the charges dismissed on grounds that the statute violated his First Amendment rights. In ruling on the motion, the trial judge found the statute to be constitutional as applied to the defendant and declined to address the defendant’s facial challenge for want of jurisdiction. Packingham was sentenced to 6 to 8 months in prison, fully suspended, pursuant to the completion of 12 months of supervised probation. Packingham appealed.
In August, 2013, a three-judge panel of the North Carolina Court of Appeals vacated the lower court’s ruling and concluded that N.C.G.S. § 14- 202.5 was not narrowly tailored, vague, and failed to “target the ‘evil’ it is intended to rectify.” The Court of Appeals also held that the statute violated “the First Amendment’s guarantee of free speech, and [was] unconstitutional on its face and as applied.”
In turn, the NC Attorney General’s office appealed the Court of Appeals’ decision to the North Carolina Supreme Court which, on November 6, 2015, by a 4 to 2 decision, reversed the Court of Appeals’ Order to Vacate and re-instated Mr. Packigham’s conviction. The state supreme court held the statute to be constitutional in all respects since it proscribes only conduct (access to a social networking site) rather than speech and that the impact on an individual registrant’s speech was merely incidental to this prohibition on conduct.
While the Writ for Certiorari has not yet been granted, the United States Supreme Court appears interested enough in hearing the state’s response, which it formally requested on April 28, 2016. The state has until May 31 to respond so it’s impossible to know at this time either how the state will respond or when the Court might reschedule the Petition for conference.
Packingham’s petition summarizes that the chief question before the Court is “whether, under this Court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to ‘access’ a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is ‘know[n]’ to allow minors to have accounts, is permissible, both on its face and as applied to petitioner – who was convicted based on a Facebook ‘post’ in which he celebrated dismissal of a traffic ticket, declaring ‘God is Good!’”
The Petition for Writ surmises that this case requires the Supreme Court’s intervention because 1) the NC Supreme Court’s decision contravenes “first principles” of basic constitutional law because of the ruling’s unconventional application of “conduct regulation” and “heightened scrutiny” analyses, and 2) that the decision is in conflict with numerous lower court opinions.
Just a week before the U.S. Supreme Court requested a response from North Carolina, a group of 16 law professors led by Eugene Volokh filed an Amici Curiae on behalf of the petitioner focusing exclusively on the NC Supreme Court’s tortured application of an “ample alternative channels” standard to the statute at issue.
Retired professor of law, David Post, recently explained the rationale behind the professors’ brief in a post for The Volokh Conspiracy blog of the Washington Post. Professor Post argues that the NC Supreme Court’s analysis is absurd because it rests upon the incredulous proposition that websites such as the Pauline Dean network, wral.com, glassdoor.com, or shutterfly are comparable to social networking giants such as Facebook, Twitter, or LinkedIn, and that prohibiting registrants from accessing such sites is no impediment to their First Amendment rights because such “ample alternatives” exist. Professor Post cites to his colleague’s previous explication of the Amicus brief here.
It is, of course, impossible to know whether the U.S. Supreme Court will grant the Writ. It grants very few. In any given year, the Court entertains nearly 8,000 petitions and grants certiorari in less than one percent (about 80). But the fact that the Packingham case was originally scheduled for conference on May 12 and then removed from the calendar consequent to the Amicus filing, quickly followed by the Court’s official request for a response from the state of North Carolina, at the very least provides surety that the Court is paying significant attention to the important constitutional questions underlying this Petition.
Can you tell us what inspired the 16 law professors to get involved with this case?
David Post’s piece in The Volokh Conspiracy blog (Washington Post) is helpful.
There’s a troubling aspect to this, which I haven’t seen addressed elsewhere:
A registrant commits a felony when he accesses–looks at–a social network that allows minors. How does someone determine if the site allows minors to participate? You read the terms and conditions, right? And you do that… by accessing the site! Even if the person intends to fully comply with the law, and upon learning that minors can create an account, he has already completed the crime by looking at the website.
Perfect example of a Catch-22!
Interesting point It truly makes no sense. The only logical way they could apply this, is to make it a crime to create an account, not to access the site.
Another point I feel they should address is, what happens when a minor joins a site they are not supposed to join? Facebook’s registration form does not offer an age younger than 18. One can assume this means that Facebook is for 18 and over users. Yet we all know there are users under 18 on it. So even if we had ample alternatives for sites for only 18 and over users, what is going to stop users under 18 from joining? And when they join are we now in violation of the law?
If their argument is that SOs in this state can not access sites that allow minors, then from where I am sitting, Facebook appears to be an ample alternative.
I am going to look up Facebook’s Terms and see how they address age restrictions.
Not sure about other States but here in FLA most sex offense statutes eliminate the “I didn’t know their age” defense by stating: lack of knowledge of the victim’s age is not an acceptable defense. Nor is the defense that the victim lied about their age.
So, If with all the information one has leads one to believe a person is “of age” and it turns out this is not the case…GUILTY!
I would assume the same lack-of-defense language to apply to a minor “lying” to create a FB page.
So with that information, we can safety conclude that their are NO AMPLE ALTERNATIVES to Facebook and all the other social media sites, because under 18 users will find a way to join these sites and we are in violation of the law if we are using sites with under 18 users. The Justices can abolish this law instantly on those grounds alone.
Bear in mind that the Justices will be limited to the specific question posed in the petition and will rely exclusively upon the arguments averred by the counsel for the petitioner and whatever arguments are contained in the state’s response. Conjectural or anecdotal arguments would only be allowable in the context of a hearing before the full bench. But the Writ first has to be granted before either side will submit an actual brief. A petition is merely a party’s request to be heard. And the response is generally reasons given why the petitioner’s case should not be heard. Should the Writ be granted, both sides would prepare more lengthy briefs for submission. But neither side would be permitted to argue facts or law beyond what is already contained in the record below. The only effective way to do that is through an Amici Curiae….which the Court is certainly not compelled to entertain.
Thank you for explaining that. I was mostly speaking hypothetically if that argument was presented at some point in the future.
From what you said, I am getting the impression that there is a good chance this case will not go further than this, and they are confined to what is allowed to be included in the argument. That is depressing.
I had to look up some of these legal terms you are using. What is with our legal system using Latin? It’s as if it was designed to confuse the people. Did you go to law school or are you speaking from experience that came with this organization? I am only asking because you sound like an experienced Lawyer.
Seeing how much activity this Packingham vs N.C. case is generating here just shows how truly oppressed we are all feeling.
Sometimes I go to my brother’s house and see his Facebook page. He is connected to all our relatives and friends from childhood. They keep in touch easily through Facebook. If it wasn’t for Facebook its highly unlikely that he would be able to keep in touch with all these people so easily.
I look at that and see people I haven’t seen or talked to in years. They are people I would really like to catch up with. I feel so left out and saddened when I see my brother’s Facebook page.
Someone should bring FB to court for their terms of use banning sex offenders and the argument should be made:
If someone doesn’t have a sex offense on court record, has never been arrested for any type of sexual crime and is free to use whatever social media he/she wishes to use and THEN commits a sexual crime against someone via the use of such social media, what then do you have to say to that?
Here’s our solution to all the worried parents out there in “little white picket fence” land – we BAN all social media from the Internet and no one has to worry anymore. Problem solved.
And if they don’t like that idea, then tell them with the every growing number of people catching some type of sexual offense charge and conviction, it won’t be long before Facebook and all other social media see a rapid decline in users anyway, so they may as well just shut down.
Even though I am sure that those who don’t understand would argue that this is not the same thing, I consider Facebook’s ban on SOs akin to Southern establishments banning minorities prior to Civil Rights Movement. We may not be a racial minority, but we are nonetheless a minority group and we are being discriminated against in a very extreme way.
However, society does not feel that way, Fred. We need to dig more in the law finding laws we could use. I have noticed that when I use the tactics my p.o uses on me on her, she doesn’t like it. Finding some unjust reason, then to punish me. However, if we have factual evidence in front of us, and address those in charge, could that help us, or can they punish us as a whole
The bigger problem is the newspapers and TV stations that require you to have a FB account in order to post comments. I choose to abide by FB’s restriction (I seriously don’t have time for it anyway!) But because I don’t have a FB account, I am denied the right of free speech by many mainstream media outlets (e.g., Gannett).
Lets all think for a minute. If you really think about it the social media is what got a lot of us on the registry in the first place. While I am not for or against social media or free speech I am against the evil that is ignited by this.
Social media is not the problem. It is when those of higher authority use it as a weapon such as in these sting operations to con with a sexual slant if you want to call it that.
Now you all tell me one person in the USA that doesn’t think of sex. In other words those police that suppose to protect and serve prey on the weak and use sex as a weapon of choice because it is a very spicy topic.
If that’s the case than everybody should be on the sex registry. Social media is fine if you ask me. One can take it or leave it but when law enforcement use it as a mean’s to trap others using the sex angle than that’s another matter all together and is way out of line for those that dedicate their profession to God.
I wonder why the bible says dare go in front of the unjust courts? The whole court system is digging holes with this internet sex sting thing. Than again I wonder if its still unconstitutional to lie?
Doesn’t matter. They will do what they did in Louisiana. RSOs can use social media they just have to put on their profile page that they are a RSOs, the crime they were convicted of and where, a physical description of themselves, and their address of where they reside.
They will always try and find a way to ostracize RSOs
This is a link from “google alert” that was in my email today.
https://www.google.com/url?rct=j&sa=t&url=http://www.kshb.com/news/region-missouri/jackson-county/jackson-county-sheriff-conducts-sex-offender-sweep&ct=ga&cd=CAEYACoUMTM5NzUzNjY4ODQ0MDIxNzk3MzEyGmM4MDA0ZWNhODJmNTlmMTg6Y29tOmVuOlVT&usg=AFQjCNHyfjSchMXp1V90Z68cEoMwtPFOiA
Does anyone know if Jackson County, Missouri is in the USA? How can this happen? How can 17 teams, comprising of police from US Marshal, State and county police, spend 3 months planning and then 5 days implementing the harrassment of 2,200 american citizens? Then get on the news and brag about how they put behind bars 200 of those people for: “changing their appearance and not reporting it within 3 days”, “for possibly living within 1000 ft of a licensed childcare facility”, or “possessing a non-reported electrical device” (I’m sure there are other reasons for the arrests, but these were the only 3 reasons that were quoted by the police on the news.)
It’s reported the police are “knocking” on doors of “these ex-cons and sex offenders”, but you can plainly see 5 to 6 policemen walking up onto a porch and one of them will take the side of his fist and beat, and I mean “BEAT” on the door. The video shows a policewoman talking about how “it’s finally nice to get out and do something for the kids” and an over the top, near-to-tears sheriff proclaiming how they want victims to know they are being protected.
What’s really surprising is, with all these reports coming from a fairly large city, there is not one peep out of American citizens or the ACLU or any other group that watches over the rights of Americans. So I’m guessing the police are clearly in their rights to do what they do.
I have a question. If I see 5 armed police, dressed like a government hit squad, and a news reporter with a cameraman on my porch, and they’re pounding on the door, do I have the right to not answer my door? Better yet, do I have the right to show my middle finger to them in the window and then go back to watching the baseball game on TV, without my peace being disturbed, and still have the constitutional right to not have my door kicked open and being arrested? I am not on probation or parole, my crime was 36 yrs ago and I have been out of the DOJ Machine for 25 yrs., I do the 3 month registry reporting and I report everything thoroughly without hesitation, so I don’t want any of that “it depends on……..(fill in the blank)” for an answer.
But of course I do know the answer. I will have my door kicked in and I will either be killed or beaten within an inch of my life and the news report will say, “A Convicted Sex Offender, blah, blah, blah, was killed (or injured) by the police for blah, blah, blah….end of story) And the comment section will contain all the different ways of how I deserve death and all the different ways they would have chosen to have me killed or sexually violated and/or mutilated. There would be nothing about Viet Nam War Veteran, worked in United States defense for 44 years, raised a family of successful, college educated, civilly minded children, paid taxes, tithed to a church, gave to charities, worked and fed people in disaster reliefs or had any other human quality that may have been a positive because all was erased by one stupid mistake 36 years ago.
You know what? I hate be an American right now. I hate what our society has turned into. The only thing I got going for me right now is that I’m in my sixties and it’s almost over.
I just looked up my SOR on-line. It appears everything is current for the state of Mo,. but the “on-line” information that is listed on the county’s website is wrong. They have my place of employment, but I retired 2 yrs ago, and vehicles I own, which I sold 2 yrs ago, and did not list my new vehicles. My appearance has changed because i’m 40 lbs heavier, my hair is now white, and there very little of it. I guess I can be arrested any day now since I am not “compliant”. Even though I have the signed paperwork showing I made the changes, there is probably some small print in the law that makes it my responsibility that the CLEO reports the info correctly.
Maybe this can be a defense. “If they don’t care, then I don’t care”
Yes, Jackson County, MO exists. The city of Kansas City, MO lies within its borders as well as towns like Independence, Blue Springs and Oak Grove. The county is big. And yes, this did happen. It was one of the top of the line news story. It was even mentioned on tv that a sex offender was arrested because he had in his possession an unregistered cell phone! I believe the count that was given was 87 arrested for various infractions and about 220 cited, 2100 addresses were checked by 19 agencies. See http://www.kansascity.com/news/local/crime/article80809717.html
I see a lot of you people on here are opening your eyes and commenting about these sex operations. One comment on here from Remo and John W caught my eye. They will do what they want. While all this is food for thought it opens those that are considered sexual predators by some cunning craftiness.
The bible says bow down to no man. That’s plain and simple. Now during these internet encounters if one would have said are you trying to con me. They being the con artist would have to say no. Two wrongs do not make a right.
In the law run you will find out that there are victimless predators. The old saying actions speak louder than words is not even put to merit but is taken for granted.
Now when one gives in and than catches those that conned to entrap so to say than, those who suppose are not going to fess up to getting caught with their pants down. They would rather ensnare their prey with this sex angle. Do you all see where I’m coming from.
I don’t like these sex sting operations through a computer. They leave a dark hole and upset other’s lives. Now preventing something from happening is another story but inducing something that might transpire is a different matter.
So what can one say honesty is the best policy or someone failed in being a good boy scout? Since this ordeal I have little less respect for law enforcement today.
James,
I fully understand and agree with what you say. But I also feel that such entrapment schemes and the bait & switch techniques used by law enforcement is the “fruit of the rotten tree”.
I believe our whole society has gotten out of control of what is right & wrong, of what is just & unjust, the meanings of charity, hope, forgiveness, and a host of other principles which defined us as being an American in the first place. America has become the “victim society”, so we call on our government to appease us, which they do, which in turn, gives them a false sense of admiration, but, a true power. I also believe that this downward slide didn’t start at any particular time in our history or caused by any left or right wing rhetoric as much as it started in our own laziness, selfishness, ignorance, and any other unflattering characteristic a person can think of.
My case in point is this: If, I read and understood the “Bill of Rights” as being a fundamental instruction of what they, the law-makers were not allowed to do, instead, I have allowed the law-makers to convince me that it was an instruction of what I was not allowed to do, then I’m the fool and I get what I deserved.
I am a mere person, with a simple minded way of understanding. When I read things like: Congress shall make no law prohibiting the free exercise of speech; to keep and bear Arms; the right against unreasonable searches; nor shall any person be subject for the same offence twice; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, etc., etc., I get it!!! My mind knows what all this means. But when congress added: “Except for Sex Offenders” I became a man without citizenship or its protections. I realize that things change because of court precedents, progress, interstate commerce, the civil war, it’s a living breathing document, blah, blah, blah. But I always thought that unconstitutional meant, unconstitutional, regardless! By the way, if words have meanings, than I am not a sex offender. I am a ex-Sex Offender, (Just like everyone else on the planet, by definition)
Nevertheless, Memorial Day causes me to reflect on how I am grateful for not only my family who gave their lives, but for all the one’s who stood, fought and sacrificed, whether domestic or abroad, no matter what the cost, for all of us, no matter our deed. My “scarlet letter” cannot take that from me.
I posted some of this at another place, but maybe I should have posted it here.
You do realize that Egyptians toppled their government using Social Media, and the US attempts to do the same thing in places like the Ukraine and Cuba.
Maybe the US realizes their own vulnerabilities because of their own treacherous snake-in-the-grass antics in foreign governments.
Maybe the reason that the government is so hell bent on keeping us off social media is they don’t want 850,000 registered american citizens and God only knows how many in Canada, Mexico, England Japan, or whatever country they’re dictating morality to, clogging up their systems with plans of travel, like for Thanksgiving 2016.
I may be mistaken, but I thought the SCOTUS ruled that civil disobedience was not criminal, but a constitutional right. You know that little bothersome detail that gives us the right to peacefully assemble (on-line) and to petition the government to redress our grievances.
I don’t remember the government saying that when they were investigating Ferguson, Mo. riots that the people were wrong because children were possibly present. I believe the government said they were right, as long as they weren’t damaging property and assaulting the police.
I just checked the SCOTUS website and this case is still active. http://www.scotusblog.com/case-files/cases/packingham-v-north-carolina/
Hopefully this will strike down the draconian internet laws affecting registered citizens in other states, such as Florida, as well as in NC.