At the beginning of November, the North Carolina Supreme Court rejected a First Amendment challenge to a provision of state law that prohibits registered sex offenders from using Facebook and other social media sites that children under 18 can join. The justices, in a split 4-2 opinion with one justice not participating, reversed a North Carolina Court of Appeals ruling that found a 2008 law too general and vague, and subsequently unconstitutional.

In 2008, the North Carolina General Assembly passed a comprehensive law package, N.C. Gen. Stat. 14-202.5, banning registered sex offenders from using commercial social networking sites such as Facebook and Twitter as well as adding sentencing requirements for child predators and child pornographers who use the internet to locate their victims.

Registered sex offender Lester Gerard Packingham, Jr., who brought the challenge to the state law in State v. Packingham, faced additional charges in 2010 when the police in Durham found a Facebook profile page he had created under a different name.

The discovery of this profile resulted in a search of Packingham’s home, where a copy of a notice of “Changes to North Carolina Sex Offender Registration Laws” was found. Because this notice spelled out the type of social networking outlets banned to sex offenders, and because he had signed the notice, he could not credibly argue that he didn’t know about the prohibition.

What Does the Decision Say?

In his majority opinion, Justice Robert Edmunds said that the 2008 General Assembly carefully tailored the statute in order to prohibit registered sex offenders from joining and accessing only those sites that allow them the opportunity to find information about minors. The law, according to Edmunds, is only intended to limit conduct – not affect speech.

The two dissenting judges, Judge Robin Hudson and Judge Cheri Beasley, said that the law is “unconstitutionally vague.” They argued that it blocks convicted sex offenders from communicating with anyone via widely used networking sites. Under this law, even sites like Amazon or news sites could potentially be restricted to sex offenders. One of Packingham’s former attorneys even argued that, as written, the law could make it difficult for a sex offender to engage in normal internet usage such as performing a Google search.

What Does This Mean for Registered Sex Offenders?

Under North Carolina’s sex offender law, anyone convicted after 1996 of sexually violent offenses and specific crimes against children must register with the sheriff in the county where they live. As a condition of being on the registry, sex offenders may not live close to schools or daycares, and they are prohibited from working with minors and visiting certain areas where children are likely to be present.

In addition to registering, the reversal of the Appeals Court’s decision means that the 2008 law is constitutional. The basis of the law is to protect children from being approached by sex offenders through social networking websites, but convicted sex offenders are not forbidden from using the internet as a whole.

There are a number of websites apart from commercial social networking outlets where sex offenders can express their opinions and communicate with others. For example, the law makes clear exceptions for sites that provide narrow services such as email or texting. Convicted sex offenders are also able to use sites like The Paula Deen Network because members must be at least 18 years old to join.

Sites like Facebook and Twitter, however, aren’t allowed under the statute because minors are able to join and have profiles.

As defined by the law, a “commercial social networking website” is one that receives revenue from advertising or membership fees, encourages social interaction, and permits users to create pages and profiles to post information. But the process of categorizing these websites gets complicated, because a seemingly non-restricted site may have secondary social networking forums where minors are able to join and interact.

How Specific Is This Law?

Chapel Hill attorney Glenn Gerding, who represented Packingham, discussed how this law affected another one of his clients, a registered sex offender who was unable to attend his child’s T-ball games.

The client’s wife had planned to go to their child’s game and use Skype with her husband so he could watch the game without actually being there. However, a sheriff told Gerding’s client that using Skype would violate the 2008 law.

Bottom line: North Carolina’s sex offender laws are complicated and confusing. If you have been arrested or convicted of a sex crime, contact a knowledgeable criminal defense attorney today to understand and know your rights so that you don’t unintentionally break the law.

About the Author

Attorney Mike Schlosser represents victims of personal injury, those charged with a crime, as well as those facing traffic charges. A former Guilford County, North Carolina District Attorney, Schlosser has been in private practice at the Law Firm of Schlosser & Pritchett since 1983 and has been a member of the North Carolina State Bar since 1973.