In Packingham v. North Carolina, the Supreme Court of the United States struck down G.S. 14-202.5, North Carolina’s ban on sex offenders accessing commercial social networking websites. The law violates the First Amendment.

I’ve been writing about Packingham since 2013 (the first mention was here), so I’ll give only a brief summary of the facts today. Lester Packingham is on the sex offender registry for indecent liberties with a child. In 2012, he was convicted after a jury trial for violating North Carolina’s commercial social networking ban for sex offenders for being on Facebook.

The court of appeals reversed his conviction (as described here), concluding that the law was facially invalid under the First Amendment. State v. Packingham, 229 N.C. App. 293 (2013). The State sought and obtained review in the Supreme Court of North Carolina, which reversed the court of appeals and held that the law was “constitutional in all respects.” 368 N.C. 380, 381 (2015). The defendant appealed that decision to the Supreme Court, which granted certiorari.

In a decision issued on Monday, the Supreme Court reversed North Carolina’s high court, holding that the statute is unconstitutional. All the justices agreed in the result. (Justice Gorsuch took no part in the consideration or decision of the case.)

Writing for the Court, Justice Kennedy began by noting that the Packingham case is “one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet.” Slip op. at 6. As such, he wrote, the Court would “exercise extreme caution,” id., before limiting the scope of free speech rights in what he called today’s “most important” place for the exchange of views—cyberspace, id. at 5.

The Court did not appear to find North Carolina’s statute to present a very close case. Even assuming that the restriction was content neutral and that intermediate scrutiny applied, the Court struck it. Protecting children from sex crimes is of course a legitimate governmental interest, but North Carolina’s restriction simply burdens too much legitimate speech—even under the assumption that it applies only to websites colloquially known as social media (sites like Facebook, LinkedIn, and Twitter), and not to the wider array of sites (like Amazon and WebMD) that might also fall within the definition of a “commercial social networking Web site” in G.S. 14-202.5.

Justice Alito wrote a concurrence that was joined by Chief Justice Roberts and Justice Thomas. They agreed that North Carolina’s statute violates the First Amendment, but disagreed with the sweeping language in Justice Kennedy’s opinion that appeared “to equate the entirety of the internet with public streets and parks” for First Amendment purposes. Slip op. at 1 (Alito, J., concurring). The concurring justices feared that the Court’s broad language (which Justice Alito described as “undisciplined dicta”) could inhibit states’ ability to craft more carefully tailored—and thus potentially constitutional—restrictions in the future.

I’ll leave it to the First Amendment scholars to dissect the full significance of the Court’s foray into the world of social media. I do, however, have some thoughts about what Packingham means as a practical matter here in North Carolina.

The Court struck G.S. 14-202.5 in its entirety. The opinion does not leave room for a narrowing construction, and there is no offender to whom the existing law may be permissibly applied.

Any pending charge for a violation of G.S. 14-202.5 should be dismissed. For some offenders, other charges related to their alleged use of social media may be proper, such as solicitation of child by computer, G.S. 14-202.3, or perhaps failure to register under G.S. 14-208.11(a)(10) by failing to inform the sheriff of all online identifiers.

Defendants serving sentences for this offense should seek relief. Packingham is a substantive decision that “place[s] particular conduct . . . beyond the State’s power to punish,” Schriro v. Summerlin, 542 U.S. 348, 352 (2004), and it thus applies retroactively. A search of the Department of Public Safety’s automated system query indicates that there is one active prison inmate and 17 probationers whose most serious offense was a violation of the commercial social networking ban.

Probation and post-release supervision. Even if the commercial social networking ban no longer applies as a standalone crime, could a trial judge impose a similar restriction as a condition of probation? Probationers and parolees do not enjoy “the absolute liberty to which every citizen is entitled.” Morrissey v. Brewer, 408 U.S. 471 (1972). In general, special conditions of probation are valid if they are reasonably related to the defendant’s crime and rehabilitation. G.S. 15A-1343(b1)(10); State v. Johnston, 123 N.C. App. 292 (1996). Applying a similar analysis, courts across the country have generally rejected lifetime bans on all internet access as a condition of supervised release, see United States v. Duke, 788 F.3d 392 (5th Cir. 2015) (collecting cases), but have often approved internet restrictions limited in time, United States v. Paul, 274 F.3d 155 (5th Cir. 2001) (3 year ban), or scope, United States v. Miller, 665 F.3d 114 (5th Cir. 2011) (internet access permitted with probation officer approval). Courts have upheld requirements for a probationer to share social media passwords with their supervising officer, e.g., People v. Ebertowski, 228 Cal. App. 4th 1170 (2014), but whether an outright ban would survive a First Amendment challenge appears to be an open question—especially after Packingham, given the Court’s view of the central importance of social media in modern life.

Facebook’s terms of service still bar sex offenders. Sort of. The terms ask for users’ “help” in making a “commitment” that “You will not use Facebook if you are a convicted sex offender.” So, it may no longer be a crime for a North Carolina sex offender to use Facebook, but access is still limited by Facebook itself.

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