A North Carolina appellate court found a state law banning registered sex offenders from commercial social networking sites, which also permit minors to become members or maintain personal web pages, to be unconstitutional. The opinion, written by Judge Rick Elmore who was joined by Judge Martha Geer and Judge R. Christopher Dillon, held that the statute “arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal.”
The appeal was brought by a registered sex offender who was found guilty of maintaining a personal web page or profile on Facebook. In keeping with the new law, members of the Durham Police Department investigated profiles on sites such as Facebook and Myspace for evidence of use by registered sex offenders and recognized the defendant who was subsequently indicted. It was argued on appeal that the NC statute violated the defendant’s federal and state constitutional rights to free speech, expression, association, assembly, and the press under the First and Fourteenth Amendments. Moreover, the defendant argued that the statute was overbroad, vague and not narrowly tailored to achieve a legitimate government interest.
The court noted that the law was content-neutral to the extent it banned access to commercial social networking sites without any reference to the content or type of speech disseminated or posted on the site. Citing to the U.S. Supreme Court decision in Ward v. Rock Against Racism, the court noted that “Content-neutral regulations are subject to intermediate scrutiny: they must be both ‘narrowly tailored to achieve a significant governmental interest’ and ‘leave open ample alternative channels for communication.” The court did not need to address the issue of “alternative channels of communication” as it found the statute not to be narrowly tailored. “The U.S. Supreme Court has stated that a narrowly tailored statute ‘targets and eliminates no more than the exact source of the evil it seeks to remedy. A complete ban can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil” wrote Judge Elmore citing to the 1988 U.S. Supreme Court opinion in Frisby v. Schultz. He continued, citing to a similar case in Nebraska dealing with a 2012 statute, that “[T]he ban potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors.” The NC court also noted that similar decisions in both Nebraska and Indiana were applicable only to those registered sex offenders whose offenses involved a minor whereas the North Carolina statute had no such limitation.
The North Carolina Court of Appeals also found the law to be both vague and overbroad noting that “while persons of ordinary intelligence would likely interpret the statute as prohibiting access to mainstream social networking sites such as Facebook.com and Myspace.com’…’the ban is much more expansive.” “For example, while foodnetwork.com contains recipes and restaurant suggestions, it is also a commercial social networking Web site because it derives revenue from advertising, facilitates the social introduction between two or more persons, allows users to create user profiles, and has message boards and photo sharing features,’’ all of which are consistent with the characteristics included in the statute’s definition of a “Commercial networking Web site.”
You can read the court’s opinion here.
No comments:
Post a Comment