North Carolina Appeals Court Strikes Down Sex Offender Law

Sex offenders are among the most loathed people in our society. Since the 1990s, states have increasingly regulated the conduct of people registered as sex offenders, and have expanded the definition of sex offender over time. Originally targeted at violent predators, today, a sex offender registration is a requirement of almost all sex-related crimes, including the Class A1 misdemeanor of sexual battery.

And, over time, the government has increasingly limited where sex offenders can live, where they can work, what jobs they can have, and even how they can interact with people online.

Given how important Facebook, LinkedIn, MySpace, Twitter, and other social networking tools are in today’s world, it was inevitable that a challenge would be made to laws restricting or prohibiting sex offenders from using such services.

In 2008, the General Assembly passed the “Protect Children from Sexual Predators Act”, a bill supported by Attorney General Roy Cooper.

The bill, among other things, added a new crime to the North Carolina General Statutes under Sec. 14-202.5 making it unlawful for a sex offender to access a commercial social networking Web site where the offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking Web site.

The bill made the new crime a Class I felony.

Lester Packingham, a registered sex offender from Durham convicted in 2006 of indecent liberties with a minor, was convicted of violation of the law, and appealed that conviction in 2012, arguing that the law violates his rights to “free speech, expression, association, assembly, and the press under the First and Fourteenth Amendments.”

The North Carolina Court of Appeals agreed, striking down the law as unconstitutional because it was not narrowly tailored to meet a compelling state interest. As the North Carolina Court of Appeals writes:

In contrast, N.C. Gen. Stat. § 14-202.5 applies equally to every registered sex offender in the state, regardless of whether the offender committed any sexual offense involving a minor. For example, registered sex offenders convicted of misdemeanor sexual battery of an adult, pursuant to N.C. Gen. Stat. § 14-27.5A (2011), and those convicted of attempted rape of an adult, pursuant to N.C. Gen. Stat. § 14-27.6 (2011), may not access any commercial social networking Web site. Thus, the application of this statute is neither conditional upon showing that the offender previously used a social networking Web site to target children, nor does it require a showing that the offender is a current threat to minors.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.