North Carolina versus First Amendment: SCOTUS to decide

By Andrew Cohen . . . Lester Gerard Packingham was having a really good day back on April 27, 2010. The North Carolina man had just learned that a traffic ticket against him had been dismissed, so he logged onto his Facebook account and gleefully told the world: “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court costs, no nothing spent… Praise be to GOD, WOW! Thanks Jesus.”

At the same time, Brian Schnee, a police officer in Durham, was doing his job, working to identify registered sex offenders in the state who were accessing sites like Facebook. He came across Packingham’s post and recognized the face but not the name on the page, “J.r. Gerrard.” Because Schnee knew Packingham to be a sex offender the officer got a search warrant for Packingham’s residence, where he found proof that Packingham was, indeed, “J.r. Gerrard” and that he had, indeed, opened the Facebook account.

Packingham’s glee soon ended. He was indicted and ultimately convicted of violating a state law that makes it a felony for any person on the state’s sex offender registry to “access” any “commercial social networking Website” that he or she “knows” does not restrict membership to adults. The sweeping measure, enacted in 2008, applies to approximately 20,000 North Carolina residents who have been placed on the offender registry for one reason or another. It has been used in more than 1,000 prosecutions like the one against Packingham.

But none of those other cases generated a successful U.S. Supreme Court appeal. For six years now Packingham has fought the charges, in and out of court, on the simple premise that it should not be a crime to express online joy (on Facebook or any other site) about the demise of a parking ticket. And prosecutors and state attorneys have been equally adamant since 2010 that the law that ensnared Packingham is a valid exercise of state power to protect the Internet’s most vulnerable surfers from great harm.

Next week, the justices in Washington will hear oral arguments in the Packingham case. The primary dispute centers around Packingham’s free speech rights: does the First Amendment protect his ability to be on Facebook as a sex offender? But just below the surface is a dispute about how far the state may go to punish someone for acting without criminal intent. As Packingham’s lawyers put it: “[E]arly First Amendment cases establish basic principles restricting criminal punishment to persons proved to have acted with both ‘an evil doing hand’ and ‘an evil meaning mind’” and Packingham is guilty of neither.

(Please continue reading at The Marshall Project)

Listen to Attorney Glenn Gerding and “Case in Point” journalist Andrew Cohen being interviewed about Packingham by John Hockenberry on The Takeaway (WNYC):

  1. Takeaway interview

21 comments for “North Carolina versus First Amendment: SCOTUS to decide

  1. dave
    February 27, 2017 at 7:07 pm

    NPR they really do make news instead of reporting it don’t they.

    “For seven years after his conviction, Packingham had no further sex offenses — until he signed up for the Facebook account.” So they are saying him signing up for the facebook account was a sex offence or he did a sex offence after also not true.

    News is not news anymore it is just another subliminal stab at RSOs

  2. Jeremy
    February 27, 2017 at 2:10 pm

    One thing the defense hopefully brings up is that this also hurts entrepreneurial ambitions of SOs and any small business we may work for. Since this system is set up to deny most of us even the most basic of jobs to support ourselves and our families, many of us have resorted to trying it on our own with our own businesses. Most businesses hire social media managers now due to the effect of proper social media advertising. As a business owner myself, I am very nervous about this decision because if my state tries to follow precedent (if we don’t win), then I will not be able to advertise online hardly at all! While you may think that I can just use search engines like Google and Bing, the algorithms for these search engines evaluate a business’s social media presence for rankings. Without social media for my business, my business is doomed to fail. The only thing I’m banking on if we lose is that my state (Indiana) has declared the registry punitive in a state supreme court decision. With that precedent, I can argue that any new laws affecting my status as an RSO do not apply to me under ex post facto rules. Maybe RSOL can help me with this if it comes to that. Unfortunately, this means that I will have to break the new “law” and be arrested before I can fight it though.

    • Jeremy
      February 27, 2017 at 3:32 pm

      I just read the defense brief that was publicly submitted and I am extremely impressed! Although the entrepreneurial issue I am bringing up was not discussed in that brief, the defense brought up many good points that may get the courts finally leaning in our direction. They chastised the state for it’s claim that SOs are more likely to recidivate. The state used the same DOJ study that we are all most likely familiar with. They only quoted the portion about SOs more likely to commit sex crimes versus other offenders while omitting the overall recidivism rate. The defense brief correctly. That quote is misguided and unnecessary, but oft quoted, as it’s similar to saying a thief is more likely to steal than other criminals. The defense correctly pointed out the recidivism rate, 5.3%, using that study along with multiple others. This will help correct the judiciary’s ill informed belief about SO recidivism rate which could have very positive implications for us as a whole.

      I only had to read a few pages of the state’s brief, which banks on support for the “government’s interest”, to realize their argument is very thin. The defense brief tears this argument up pretty well in their whole brief. I think we have a really good chance of winning this one. The question is how the decision will be written and applied as precedent. I can’t wait to find out!

      • Jeremy
        February 27, 2017 at 11:40 pm

        I just read the amicus brief that NARSOL filed and the entrepreneurial issue was brought up in the examples under John Doe #4, though I wish the search engine issue would have been added in. Still, it’s good to see that the amicus briefs on Packingham’s side are using facts and evidence while the state of North Carolina conveniently avoids it and omits information.

        Note: Justice Ginsberg dissented in Smith v. Doe in 1994. If I’m not mistaken, she’s the only sitting judge that did. Kennedy believed the “frightening and high” back then, but now seems to be realizing that mistake and is likely now in our corner.

  3. AL
    February 26, 2017 at 11:06 pm

    This was submitted to the counsel for petitioner. It was forwarded to the person arguing the case before the SCOTUS.

    In light of the fact that the state’s primary arguing point defending N.C. Gen. Stat. Ann. § 14-202.5 is the supposed protection of minors on social media, I would strenuously point out that this primary argument lacks sufficient weight and justification due, to a large extent, to the following:

    A. Any and all sex offender registries and the codes/laws that constitute sex offender registration requirements can only affect those persons who are subject to such codes/laws.

    B. The vast majority of sex-related offenses (convictions) are committed by those persons who are not in sex offender registries nor subject to sex offender-related codes/laws.

    C. The recidivism rate (subsequent convictions related to offenses against minors) of those who were previously convicted of offenses related to minors is very low.

    D. Therefore, sex offender registries, and also registration laws/requirements, do very little to prevent future sex-related offenses. This of course includes the North Carolina law prohibiting ex-sex offenders from using or accessing the bulk of social media websites.

    The above can be used to argue the following:

    A. The making of laws should consider if such proposed laws will substantially fulfill their purpose and if they will create greater evil(s) than they can potential solve.

    B. N.C. Gen. Stat. Ann. § 14-202.5 does not substantially fulfill its purpose. It also creates greater evils than it can potential solve. This is due to the fact that:

    1. N.C. Gen. Stat. Ann. § 14-202.5 does extremely little to prevent future sex-related offenses against minors as pertains to social media use.

    2. Its implementation comes with a serious price tag to North Carolina’s tax payers while doing little to fulfill its intent and purpose of preventing harm to minors as pertains to social media use.

    a. Such wasted money could be better spent on supporting the state’s youth in other effective and productive ways.

    3. It creates a totally unnecessary burden on registered ex-sex offenders who are attempting to live as productive and law-abiding members of society in an attempt to meet society’s expectation of rehabilitation and integration.

    a. The N.C. law and other similar laws make it nearly impossible for many ex-sex offenders to have any real hope of fulfilling such expectations and living productive, law-abiding lives. This lack of hope has serious practical, emotional and mental ramifications for former sex offenders, which of course also directly and negatively impacts society.

    b. These negative consequences work counter to the very intent and purpose of sex offender laws in both North Carolina and in the other states.

    • david
      February 27, 2017 at 6:49 pm

      Excellent post!

      One thing that keeps coming up is the supposed “high recidivism rate” SO’s pose. We need to stop courts and lawmakers from citing falsehoods to justify their agendas.

      I’m hopeful that this case will start a national conversation. Hopefully, we will have a chance to get the real facts to the public.

  4. H n H
    February 25, 2017 at 9:46 pm

    Does anyone have information on the original intent and arguments for and against the registry? Clearly… and I do mean CLEARLY, the list has been abused by people and the government! It was not going to be used for vigilantism (I recall that being a fear of implementing the cursed thing, but I can’t find who or where it was said), but it has been. Also, the entire registry was supposed to be “regulatory”, not in any way shape or form “punitive”. So, how do states run with the registry to tack on residency restrictions and internet bans? If… IF! The registry is a civil regulation, then why tack on another felony if someone fails to register? Why should registrants be penalized by having to pay for the privilege to be publicly shamed and made into a social leper? Is the system interested in the children or are they more interested in doing as much harm to an individual as possible without outright killing them? And why, if the entire “Megans Law”, or “Jessica’s Law” which led to this entire fiasco could be instituted for the single argument “it can save just one little girl”… and it hasn’t, then the opposite MUST be considered! I don’t have to say all the negatives about the registry, if you’re reading this, you know it. However, the registry HAS led to vigilantism, and outright government sponsored bullying. Is that ok? Does that make the suicides and murders brought on by the registry ok? What if little Jessica had been murdered because of the registry? Would they get rid of the entire thing just in her honor? Oh, I’m sure you’d have plenty of liberals screaming for its reversal in a heartbeat! But…

    The situations surrounding these 2 girls have been clearly USED to inhibit the rights of everyone since lawmakers had a field day with the entire registry scandal. I wonder how those girls would feel knowing other people have been murdered because of a law named after them? Or do lawmakers look the other way because the lives, hearts and souls of those on the registry apparently don’t mean anything anymore? I don’t see one single outcry for the people murdered because they were on the registry, and all the other government bullying is allowed and not even spoken of. The state has pounded one thing into my head with a sledgehammer, being on their registry, this life is now a prison, and the powers to be have done enough to me to make me hate life. They clearly want me dead, only thing is, killing is illegal, or I’m sure they’d tack that on as a punishment… and probably have the temerity to claim the death was regulatory.

  5. NCRSO
    February 23, 2017 at 9:10 pm

    I and many other NC registered citizens are excited to see what the results of this will be. I’ve read the amicus briefs from both sides, and the state’s defense sounds like a Trump supporter talking nonstop about Hillary – dancing around the issue that’s actually being argued, and arguing every other point around it. The lawyers for Packingham were coherent and make an excellent case (on paper).

    It seems likely enough to me that [the royal] “we” will win this case. The real question will be: how quickly will the NC legislature scrape up another law to replace it with, how poorly-written will it be (since they will be rushing), and will it actually make things worse?

    Part of the argument is that the scope of the existing law is too broad and/or vague. What if North Carolina decides to tighten the belt and simply restricts all access to the internet, like some states do? Or, more realistically, if they attempt to actually keep a list of permissible/non-permissible services?

    They won’t have any sympathy that I have thousands of dollars invested into the Google ecosystem (photos, music, movies, apps, and even devices) if they decide to ban RSOs from having Google accounts (a Google account starts with GMail but encompasses Google+, YouTube, and many other services that may be arguably “social” in nature, even though one may choose not to use these features of the account).

    I’ll grant that I’m alarmist and tend to start by assuming the worst, but there can be no doubt that they will attempt to replace the law if Packingham wins. The question is, will it be for the better or for the worse?

    • NCRSO
      February 23, 2017 at 9:16 pm

      Also, every time I hit the spacebar in the comment box, the audio clip started/stopped. Something’s screwy with the code.

      On top of that, a popup appeared while I was in the middle of writing the comment.

      • rwvnral
        February 23, 2017 at 9:28 pm

        Thanks. Probably some kind of auto play feature connected to the space bar. We’ll check the configuration.

  6. February 23, 2017 at 8:54 pm

    You know they say justice is blind. I wonder why they say that? Well first we have to find out just who’s justice they are talking about, man’s Justice or God’s Justice.
    Lets all take a lttle view of justice. Now here is what it says in the Declaration of Independence. It says in one of the clauses. Appealing to he supreme judge of the World and thatwe are endowed by the Creator with certain unalienable rights.
    We, therefore, the Representatives of the UNITED STATESOF AMERICA, in General Congress, Assembled, appealing to the Supreme Judge of the World for the Rectitude of our intentions

    Among the “unalienable rights” implicitly protected in the Bill of Rights are freedom of conscience–how can one have freedom of speech or religion without freedom of Unalienable rights” are ours to keep, by virtue of our Creator. So said Thomas Jefferson through the Declaration of Independence, and he was seconded by James Madison through the Bill of Rights
    .
    One of the keys is conscience. Now its Telephone or telegraph or tell a woman go for it and I wrote that tell a woman expectally for all those women that use their cell phones daily. Now everybody enjoy I have my own battle here and its about the same as this one also.

  7. John W
    February 22, 2017 at 3:11 pm

    Here is a link to the “unanimous decision” of the N.C.S.C.

    http://caselaw.findlaw.com/nc-supreme-court/1717729.html

    It is really hard to stay awake while reading all of that, but I think the bottom line is that the State has the right to protect “minor children”, (which the law defines at 18 yrs. but Facebook defines at 13 yrs.)

    Apparently Lester Packingham was proven to access Facebook because of his “profile picture”, which caused an investigation, arrest, trial, and conviction leading to a suspended execution of a 8 month prison sentence.

    If I was branded a RSO, and my wife’s Facebook Account has our wedding anniversary photo for the profile pic, should I be concerned? What if all of my children had pics of me? Is that cause for an investigation or is it direct evidence of having access to Facebook or even a membership?

    What I’m concerned about is the law that will be written next. After all, I have a wife, I have children and grandchildren, with laptops, ipads, ipods, cell phones, smart TVs, all of which I am the “owner of record” for warranty purposes. I pay for the internet access, which is in the house that I own. Am I guilty of accessing Facebook because they show me something that their excited about or interested in? What if I peek over their shoulder? What if I want to monitor my kids internet usage? Will I go to prison?

    You may think I ask tongue-in-cheek questions only to prove a point with some humor. That would be true if this was 35 years ago. That’s when none of us had a clue of what the Registered Sex Offender Industry would grow into. But in the last 12 yrs, literally thousands of laws have been written, not to regulate this industry, but to put forth a relentless hatred and punishment for people, whom, to some extent, in one way or another, we all agree, that they deserve it. Unless of course, it’s happening to someone you love dearly or you know they were only victims of the system. So, I ask my questions, not to be funny, but to show the irony of the laws intent, and to show my contempt and disdain for political expediency, and the entertainment and news medias.

    One other observation I made from reading the above link. If I were arrested today, by the time I was indicted, convicted, than appealed it through the court system, up to and including the State Supreme Court, it would be 7 years before the SCOTUS looked at it, and that’s contingent upon the minimum 4 of the justices agreeing to hear it which would make it 1 case of the 80 cases out of the 7,000-8,000 petitions that are presented to them for that term. Also keeping in mind that the State has the money, time and resources to enforce their will. Maybe it’s just easier to not have an account. Screw the principle of it.

    By the way, you ought to see the looks of puzzlement or disdain of politicians on my children’s faces, when I tell them why I can’t look at their pictures or comments or why they shouldn’t name-tag me on Facebook. But then again, I should have thought about that in 1983 before I took that plea deal.

    • Fred
      February 23, 2017 at 8:44 pm

      This comment deserves to be made into an article.

  8. Lovecraft
    February 21, 2017 at 9:24 pm

    Aside from all the things already listed the lawyer for the oral argument has to hammer home the fact that the only people this will truly affect are the ones who are trying to get on with their lives and are using social media for innocent or benign behavior. The “predators” or whatever term the respondent chooses to use are going to pursue illicit behavior online no matter the outcome of the case. Laws like these will do nothing to protect minors. It’s very easy to create a fake email address and fake social media accounts and the ones interested in doing harm won’t care about internet identifiers or social media bans.

    • Brian
      February 23, 2017 at 9:48 pm

      Underlying the NC law (and the nearly identical but much more punitive Louisiana law) is the presumption that the ONLY reason a registered citizen would be on social media is to seek new victims.
      I’m looking for work, after losing my job last year due to an injury that kept me out for 7 months. Every site with job search advice says the same thing–work your social network. I’d like a LinkedIn account: I keep seeing that I practically have to have one. From an article on MarketWatch: “Recruiters scour the world’s most popular professional networking site looking for the perfect candidate… Some 93% of hiring managers search LinkedIn for recruits, according to a survey by career website Jobvite; 65% search Facebook, and 55% consult Twitter accounts.”
      But I’m in Louisiana. Having one of these accounts in my real name would earn me a new felony, a potential 10 years (!) in prison, and restart the clock on my registration (13 years into 25–originally 10, but I was reclassified thanks to SORNA). The Attorney General’s Office refuses to provide a list of sites that are not off limits OR a list of sites which have led to prosecution. It’s a minefield.

  9. John W
    February 21, 2017 at 7:01 pm

    In my opinion, any decision other than 8-0, (or 9-0), against the state of N.C. for their law on social media would be ridiculous. I’m actually surprised that any court, or any lawmaker, can justify this law, except if that person himself, had used social media to commit a sex crime in the first place.

    I’ve read of people being convicted of sex crimes for chatting with underage girls on the internet, then agreeing to meet them for sex, only to find out that they were actually the police portraying to be the underage girl. No matter how we spin the facts, the courts have found, even though there was no victim, the mere acting on that thought of having a underage victim was justification for a conviction.

    So this is my question. If a person watched a show on cable called, “Shameless”, and he knew that Episode 11 was going to portray a 60 yr. old man having sex with a 15 yr. old girl, (but in reality she was a 23 yr old actress), and he deliberately sat down with malice aforethought, in front of his TV, wouldn’t he then be guilty of a sex crime for purposely watching it, or does that law only pertain to watching it on the internet or social media, instead of cable or DVD?

    • Dave
      February 22, 2017 at 11:31 am

      If it benefits Hollywood it doesn’t count.

  10. Fingers are crossed!
    February 21, 2017 at 4:00 pm

    This is good! High and Frightening erroneous data will come to the spotlight in the conversation here in front of the one in particular who was misguided by it and used it in error, maybe without being called out by name, but maybe with a blanket statement of the error by the high court. Since the newly nominated Judge for the open SOCTUS seat once clerked for this one particular Justice, I hope they are paying attention. Of course, this all remains to be seen if it will happen, but thousands upon thousands are hoping it will be brought up.

    • Jeremy
      February 28, 2017 at 12:25 pm

      That’s a good point! I was just reading an article about the current nominee being a law clerk for Kennedy back in the day. I didn’t connect that he was probably his clerk in 1994 when Smith v. Doe was decided and the erroneous “frightening and high” statement was brought up. I’m researching to see if this is one he recommended for cert, but it’s hard to find that information.

      Another interesting fact I just saw while researching the 1994 decision is that the attorney on behalf of the petitioners (Smith et al) was John G. Roberts, Jr. ESQ. Could this possibly be the same John Roberts that is currently the chief justice? If so, then we know we cannot count on his vote ever and he is the tool that brought up the “frightening and high” assertion. More research is needed to verify this though.

      • rwvnral
        February 28, 2017 at 12:35 pm

        Smith v. Doe was decided in 2003. McKune v. Lile (frightening and high language) was decided in 2002. In 1994, many states still had no publicized registry.

        Yes, CJ John Roberts was lead counsel for Alaska in the 2003 Smith v. Doe case, but he did not argue McKune. He is not the direct culprit of the “frightening and high” language. In addition to that, since he’s probably a fairly well educated individual, I suspect he is capable of following where the newer statistical data points. We should never assume that ANY justice is incapable of recognizing a solid factual basis for reconsidering a former application of law. Justices aren’t mercurial creatures, but they are pliable.

        • Jeremy
          February 28, 2017 at 2:57 pm

          I realized that I had the date wrong for Smith after posting this. I must be thinking of 1994 because that’s when the registry started.

          I read the entire case again and realized I had my cases mixed up. Thank you for the correction. After reading Justice Roberts comments in the Smith case, I feel that he may rule in our favor on this one and possible future cases now.

          During Smith, the registry was much less intrusive than it is now. It also appears that decision relied heavily on the supposed high recidivism rate. It also speculated as to effectiveness of the law without any prior evidence. We now have the evidence of the ineffectiveness of the registry which has already started swaying lower courts in our favor.

          I am highly confident about the outcome of this case, and I’m a little excited about the possible precedent it could set.

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