By David Post . . . As most VC readers know, First Amendment law is dominated by a single question, the 800-pound constitutional gorilla that’s always in the room: What “level of scrutiny” will the court apply to the challenged government action? How much will it demand from the government by way of justification for whatever it was that it did? How high will it set the bar?
Critical to that determination is the threshold question: Is the challenged government action a regulation of/burden on speech, or is it a regulation of/burden on conduct, with merely an “incidental effect” on speech? The distinction is critical (and often outcome-determinative) because, as the Supreme Court of North Carolina put it in a recent case (State v. Packingham, available here):
. . . a statute that regulates speech is subjected to exacting scrutiny: 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. . . . In contrast, a regulation that governs conduct while imposing only an incidental burden upon speech must be evaluated in terms of [its] general effect . . . [and] is permissible so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. [internal quotations and citations omitted]
So consider this: North Carolina law (N.C.G.S. § 14-202.5) makes it a criminal offense for anyone previously convicted of a sex offense to:
“access a commercial social networking Web site [that] . . . permits minor children to become members or to create or maintain personal Web pages on the [site].”
The stated purpose of the law is to prevent sex offenders from “gathering information about minors on the Internet.” The statute defines a “commercial social networking Web site” within the statutory access prohibition as an Internet site that
“(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; [and]
(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.”
There are two statutory exceptions: A site is not a “commercial social networking Web site” if it 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.”
Now, there are, I suppose, many things to be said for and against a statute like this. I’ve made my position clear many times (e.g., here and here): I think statutory schemes like this are ineffective, deeply unfair, counterproductive, cruel and unconstitutional on their face. But reasonable people can disagree, perhaps, about all that.
But one thing I would think we could all agree on is that this is surely a regulation of speech as opposed to conduct. The statute will — and is designed to — constrain people from communicating with other people in certain specified ways. No Facebook, no Instagram, no Twitter, no Pinterest, no Vine, no Tumblr** . . . — whatever else this is, it would hardly seem plausible to suggest that it is not regulating the ability of previously convicted sex offenders to communicate with others. (Please read entire posting at The Washington Post)
It sure makes it difficult for SOs to reach out to other SOs and create active or support groups. Maybe that was the plan all along? We are weaker when we can’t unite. A majority of Anti SOR groups are created by spouses, or parents, not offenders themselves. I am an RSO. I get nervous just posting these comments. Is this legal?
Don’t worry Fred. We won’t tell anyone that you’re posting here! haha JK But, you make a very important point. And I wholeheartedly agree. There is simply no doubting the fact that SOs are a unique minority in that our rights to organize and advocate are hampered by the very things we are most needful of organizing and advocating against. Being deprived of ubiquitous forums for speech and advocacy (such as Facebook) is a powerful contribution to our opponents’ hopes of maintaining control over our opportunities for growth, moral support, and public acceptance. But if you read David’s entire blog posting, you see that there is an even greater danger to the broader public whenever our courts play games with the legitimate reach of First Amendment protections.
With all due respect and heart felt sympathy to those who live in states where the registry is LIFE TIME, I wish someone…anyone fighting for the right for RSO’s to use social media would throw it in the courts’ and social media’s faces that when millions of the RSO’s finally come OFF the registry after the standard 10 year requirement of registering, these FORMER RSO’s whose faces will no longer appear on the registry CAN USE ANY DAMN SOCIAL MEDIA THEY WANT whether it be for illegal or legal purposes. So what then?
And how about sticking it to them that HUNDREDS of sex offense cases that happend via Facebook and other social sites, were carried out by people with NO PRIOR CRIMINAL RECORD AT ALL.
Let’s really challenge these morons and cite cases of people with no criminal history that have used FB and other sites for criminal activity and say “If you REALLY want to protect your precious children, just SHUT DOWN the social sites and end the potential of anything ever happening online again” And watch their faces looking dumbfounded. The first thing they’ll fear is the loss of ALL THAT SOCIAL MEDIA REVENUE which can also be thrown in their faces by asking them what’s more important? Selling your unwanted advertising on FB (everybody ignores those ads anyway) or the safety of your children?
We’re going to eventually get to a point where there is no way around having to use social media. And the courts need to get over themselves.
This decision needs to be appealed to the U.S. Supreme Court. The state’s supreme court is not the final say.
The proper way to tailor a social media restriction is to “forbid any sexual offender from using Facebook, etc. as a medium through which to establish or attempt to establish contact with a minor.” In other words, the prohibition should be on a specific criminal behavior. This law is overly broad in its scope and goes far beyond the alleged governmental interest being furthered by passage of this law. To wit: protecting children from contact with sexual offenders.
I also agree with finding the true statistics regarding registered sexual offenders who have actually used Facebook to establish contact with a child and groom them / lure them into a sexual encounter. I’ll bet the instances of such happening will overwhelmingly be committed by someone not on any sex offender registry and who has no criminal background at all.
Doesn’t Facebook have its own policy that denies accounts to RSOs regardless of what any local statute may say?
Facebook does indeed bar registrants from maintaining profiles pursuant to its agreement with the state attorneys general who worked to compel Facebook’s adoption of the policy. This policy is primarily the reason Facebook is currently pushing back against complaints from legitimate users who would prefer not to use their real names and faces on their FB accounts. If FB were to change it’s “real name and picture” policy, it could no longer effectively police the creation of accounts by registrants. With regard to the NC case, a writ for certiorari is being sought from the US supreme Court. But since it’s entirely at the discretion of SCOTUS to grant what writs it chooses, the likelihood of the Packingham case finding relief, or even a hearing, before the highest court is extremely narrow.
Honestly, I have ZERO interest in going on Facebook ever again. I had an account before all of this nonsense happened in my life and, while it was interesting to connect with old friends, I wasn’t all that impressed with it. We seriously need a reality check here:
1. Facebook sucks. It’s highly commercial and it’s practically worthless. The LAST thing I want is my REAL NAME connected with personal events in my life online where anyone can read or see it. Thanks to the registry, my real name is a source of shame for me and I now go by my middle name instead when I introduce myself to people. Way to destroy my identity, legal system!
2. There is STILL a lot of MONEY to be made from constantly fueling and ramping ip the sex offender hysteria. The local news is still running several sex stories per week – nearly every day – , politicians are still using the hysteria as a source of their laughable “tough on crime” stance while committing sex crimes themselves, and celebrity comedians are still using sex offenses (Jared and Cosby) as a punchline and a source for cheap laughs from the low hanging fruit of society.
Because of those two things, it is a very hard uphill battle to change ANY legislature division to change policies regarding RSOs. It’s ridiculous and needs to change, but it’s a long road yet. My advice would be to use sites like RSOL to network. We’re all communicating HERE right? Let the general public have Facebook. It’s really not worth bothering with. They will NEVER stop us being able to communicate with each other – even if we have to make paper newsletters again and hold local meetings.
Is there any possibility of this case being taken to the US Supreme Court? Nobody announced any intentions of such in the articles I saw. This whole thing is ludicrous.
We’ve been told that the attorneys will seek cert from the Supreme Court. However, the chances of it being heard are slim. The Supreme Court has discretion in the cases it accepts on a petition for certiorari and normally grants 1% of the petitions it receives each year.
Considering the absolutely massive number of Americans a Supreme Court ruling could affect, one would hope they will hear it.