EPIC - Packingham v. North Carolina

Packingham v. North Carolina

Whether a State Can Ban Registered Sex Offenders From Accessing Internet News Sites

Background|
EPIC's Interest|
Legal Documents|
EPIC's Brief|
News

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Supreme Court Asked to Hear Donor Privacy Case: An advocacy group has asked the U.S. Supreme Court to hear a case concerning a California law requiring charitable organizations to disclose the names and addresses of their major donors. Last year, a federal appellate court found that the law does not violate the First Amendment "because the information is collected solely for nonpublic use, and the risk of inadvertent public disclosure is slight." EPIC filed an amicus brief in the case, arguing that the reporting requirement "infringes on several First Amendment interests, including the free exercise of religion, the freedom to express views without attribution, and the freedom to join in association with others without government monitoring." Citing several data breaches concerning state records, EPIC also explained that California had "failed to implement basic data protection standards" for donor information. EPIC has argued for donor privacy and similar constitutional rights of anonymity in Packingham v. North Carolina, Doe v. Reed, and Watchtower Bible v. Stratton. (Aug. 28, 2019)
EPIC Amicus: Public Employees Must Be Able to Speak Freely on Social Media, "the Modern Public Square": In an amicus brief EPIC urged the Pennsylvania Supreme Court to protect the right of public employees to speak on matters of public concern on social media without fear of dismissal. The case, Carr v. Department of Transportation, concerns a state employee who was fired for comments posted to a Facebook group criticizing local school bus drivers. EPIC explained that "social media is 'the modern public square' for debate on issues of public concern," citing the U.S. Supreme Court's opinion in Packingham v. North Carolina, in which EPIC also filed an amicus. EPIC warned that "allowing the Government to fire a public employee for posts made in a private Facebook group would encourage government supervisors to surveil employees across social media." EPIC has frequently argued that the First Amendment protects the right of individuals to engage in activities free from government surveillance, in cases including City of Los Angeles v. Patel, Doe v. Reed, and Americans for Prosperity v. Becerra. (May. 7, 2019)

More top news »

Court: California Donor Disclosure Requirement Doesn't Violate First Amendment » (Sep. 11, 2018)

A federal appeals court has ruled that a California law requiring nonprofit organizations to provide the state with an annual list of donors and donations does not violate the First Amendment. The Ninth Circuit concluded that the law does not significantly burden the free speech of nonprofits "because the information is collected solely for nonpublic use, and the risk of inadvertent public disclosure is slight." EPIC filed an amicus brief in the case, arguing that the reporting requirement "infringes on several First Amendment interests, including the free exercise of religion, the freedom to express views without attribution, and the freedom to join in association with others without government monitoring." EPIC also explained that California had "failed to implement basic data protection standards" for donor information. EPIC has argued for donor privacy and similar constitutional privacy rights in Packingham v. North Carolina, Doe v. Reed, and Watchtower Bible v. Stratton.

Justice Department Withdraws Demand for Disruptj20 Visitor Logs » (Aug. 23, 2017)

Facing public outrage, the Department of Justice has rescinded a demand for over 1.3 million IP logs associated with Inauguration Day protests. DreamHost challenged the warrant, which required the web hosting service to turn over practically all records about disruptj20.org, a protest website. The Justice Department warrant could have identified protestors, threatened First Amendment protections, and violated the Fourth Amendment. After widespread opposition, the DOJ narrowed the demand to exclude visitor logs and unpublished content, such as posts and emails. EPIC opposed the DOJ's demand as it had in an earlier case involving Google search histories. EPIC also recently an amicus brief in the Supreme Court urging the Court to safeguard the First Amendment right to access information online free of government surveillance.

Justice Department Demands 1.3 Million IP Logs From Inauguration Protest Website » (Aug. 15, 2017)

Federal prosecutors in Washington, DC are demanding that an internet hosting service turn over vast amounts of personally identifying data from a website used to organize Inauguration Day protests, including a reported 1.3 million IP logs. DreamHost, the hosting service, has refused to comply with the government's warrant. In a court filing DreamHost argued that prosecutors are attempting "to identify the political dissidents of the current administration" and that the government's data demand is far too broad. In 2006, EPIC opposed a similar government demand—later dropped—for week's worth of search queries entered into Google. EPIC recently filed an amicus brief in the Supreme Court urging the Court to safeguard the First Amendment right to read in the digital era.

TSA Proposal to Inspect Books at US Airports Raises First Amendment Concerns » (Jun. 27, 2017)

The TSA is considering a requirement to remove books from carry-on luggage for inspection during security screenings. The procedure raises concerns that individuals may be singled out for their religious and political beliefs, implicating core First Amendment values. In 2015 a college student won a $25,000 settlement after he was detained by the TSA for carrying Arabic flash cards. EPIC has pursued litigation against invasive airport screening techniques. In EPIC v. DHS, EPIC successfully sued to require the Department of Homeland Security to obtain public comment on the use of body scanners in U.S. airports. The litigation also led to the removal the backscatter x-ray devices from airports. EPIC recently filed a FOIA request to determine why US travelers returning to the United States are subject to biometric identification. In numerous cases, including a recent case before the US Supreme Court, EPIC has argued for the freedom to without government surveillance.

Supreme Court: Social Media Ban Violates First Amendment » (Jun. 19, 2017)

The U.S. Supreme Court ruled today in Packingham v. North Carolina, striking down a state law that barred people listed on a sex offender registry from accessing commercial websites that allow minors to register and communicate. The North Carolina ban covered major news sites such as the Washington Post and CNN. "[T]o foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights," the Court wrote. "Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives." EPIC filed an amicus brief in the case, joined by 30 technical experts and legal scholars, explaining that the state law violated the right to receive information, censored vast amounts of speech unrelated to protecting minors, and encouraged widespread government monitoring of all internet users. Justice Ginsburg quoted EPIC's brief at oral argument, and the justices' written opinions noted policies and studies cited in the EPIC brief. EPIC frequently files amicus briefs on emerging privacy and civil liberties issues.

Supreme Court to Consider Internet Censorship, EPIC Files Amicus Brief » (Feb. 24, 2017)

The U.S. Supreme Court will hear arguments Monday in Packingham v. North Carolina. At issue is a state law that bars people listed in a sex offender registry from accessing any commercial website that allows users under 18 to create profiles and communicate online. The North Carolina ban covers major news sites such as the New York Times and CNN. Packingham was convicted for posting "Good is God" on Facebook after a traffic ticket was dismissed. EPIC filed a "friend-of-the-court" brief joined by thirty-five technical experts, legal scholars, and civil liberties organizations, EPIC explained that the law violates the First Amendment right to receive information, censors vast amounts of speech unrelated to protecting minors, and will lead to widespread government monitoring of all internet users. "The state can no more criminalize what an individual chooses to read on a personal electronic device than it can restrict the contents of a home library: the privacy of both is sacrosanct," EPIC wrote. EPIC regularly files amicus briefs with the US Supreme Court on emerging privacy and civil liberties issues. EPIC previously argued for First Amendment privacy protections in Doe v. Reed, Watchtower Bible v. Stratton, and Los Angeles v. Patel.

EPIC Urges Supreme Court to Protect Online Privacy, Right to Read » (Dec. 22, 2016)

EPIC has filed a "friend-of-the-court" brief in Packingham v. North Carolina, a U.S. Supreme Court case about a state law that bars access to certain websites. Under a North Carolina law, released sex offenders are barred from accessing any website that allows people under 18 to create profiles and communicate online, including major news sites, such as the New York Times and CNN. In a brief joined by thirty-five technical experts, legal scholars, and civil liberties organizations, EPIC explained that North Carolina laws violates the First Amendment right to receive information, censors vast amounts of speech unrelated to protecting minors, and will lead to widespread police monitoring of all internet users. "The state can no more criminalize what an individual chooses to read on a personal electronic device than it can restrict the contents of a home library: the privacy of both is sacrosanct," EPIC wrote. EPIC regularly files amicus briefs with the US Supreme Court on emerging privacy and civil liberties issues. EPIC previously argued for First Amendment privacy protections in Doe v. Reed, Watchtower Bible v. Stratton, and Patel v. Los Angeles.

Summary

The First Amendment protects not only the right to speak freely, but also the right to receive information and ideas. As the Supreme Court explained in Stanley v. Georgia: "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." At issue in this case is a North Carolina statute that limits the information registered sex offenders may receive online and establishes a system of routine police surveillance of social media and news websites.

The North Carolina Supreme Court held the law constitutional, but an appeal was taken to the U.S. Supreme Court arguing that the law “singles out a subclass of persons, who are subject to criminal punishment based on expressive, associational, and communicative activities at the heart of the First Amendment, without any requirement that their activity caused any harm or was intended to.” The Supreme Court granted that petition and will now consider the constitutionality of a state law that threatens the right to access speech and opens the door to dragnet monitoring of online expression.

Question Presented

"The North Carolina Supreme Court sustained petitioner's conviction under a criminal law, N.C. Gen. Stat. § 14-202.5, that makes it a felony for any person on the State's registry of former sex offenders to 'access' a wide array of websites—including Facebook, YouTube, and nytimes.com—that enable communication, expression, and the exchange of information among their users, if the site is 'know[n]' to allow minors to have accounts. The law—which applies to thousands of people who, like petitioner, have completed all criminal justice supervision—does not require the State to prove that the accused had contact with (or gathered information about) a minor, or intended to do so, or accessed a website for any illicit or improper purpose.

The question presented is: Whether, under this Court's First Amendment precedents, such a law is permissible, both on its face and as applied to petitioner—who was convicted based on a Facebook 'post' in which he celebrated dismissal of a traffic ticket, declaring 'God is Good!'"

Factual Background

Petitioner Lester Packingham was indicted in 2002 by a North Carolina grand jury on two counts of statutory rape. Under the terms of a plea bargain, Packingham pled guilty to a single count of taking indecent liberties with a minor. As a result of his conviction, Packingham was ordered to register as a sex offender.

In 2008, the North Carolina General Assembly enacted N.C. Gen. Stat. § 14-202.5, which prohibits registered sex offenders from accessing any “commercial social networking Web site where the sex 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 statute defines “commercial social networking Web site” broadly, appearing to include sites such as YouTube and nytimes.com. Legislators intended the law to make North Carolina “one of the toughest states, if not the toughest state” in its approach to registered sex offenders.

In April 2010, an officer from the Durham Police Department was browsing Facebook to identify registered offenders who might have illegally accessed the site. The officer came across a profile under the name “J.r. Gerrard” which, based on the photo, appeared to belong to Packingham. The profile featured the following post:

Man God is Good! How about I got so much favor they dismiss the ticket before court even started. No fine, No court costs, no nothing spent . . . . Praise be to GOD, WOW! Thanks JESUS!

After verifying through court records that Packingham had recently had a traffic citation dismissed, the officer obtained a warrant for a search of his residence. There, the officer discovered a picture of Packingham which matched the image on the Facebook profile. Packingham was placed under arrest.

Procedural Background

State Trial Court

After a grand jury indicted Packingham for violating § 14-202.5, he moved to dismiss the charge on the ground that it violated his federal and state rights to free speech. The trial court denied the motion, and the North Carolina Court of Appeals—the state’s intermediate appellate court—denied Packingham’s request for interlocutory review. Following conviction by a jury, Packingham appealed again.

State Court of Appeals

On appeal, the Court of Appeals unanimously vacated Packingham’s conviction, holding (1) that the statute was content-neutral and subject to intermediate scrutiny (less rigorous than the test applied to content-based restrictions), but (2) that the statute nevertheless violated the First Amendment on its face and as applied to Packingham. Though it was “undisputed that the State has a significant interest in protecting minors from predatory behavior by sex offenders on the internet,” the court concluded that § 14-202.5 was not narrowly tailored to serve that interest because it “burdens more people than necessary to achieve its purported goal.” Thus, the law failed intermediate scrutiny.

The court also held the law unconstitutionally vague, noting that it “fails to give people of ordinary intelligence fair notice of what is prohibited.” As a whole, the court wrote, “the statute prohibits a registered sex offender whose conviction is unrelated to sexual activity involving a minor from accessing a multitude of Web sites that, in all likelihood, are not frequented by minors.”

State Supreme Court

On review, the state Supreme Court reversed the Court of Appeals and held the statute constitutional in all respects. The court first held (1) that the law primarily regulates conduct and imposes only an incidental burden on speech, and (2) that the law is content-neutral. The court thus applied the test of United States v. O'Brien, a modified version of intermediate scrutiny. O'Brien states that a nonspeech regulation which imposes an incidental burden on speech

is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest[.]

The first two O'Brien factors were uncontested by the parties. The third factor was also satisfied, the court wrote, because “[t]he interest reflected in the statute at bar, which protects children from convicted sex offenders who could harvest information to facilitate contact with potential victims, is unrelated to the suppression of free speech.”

The court’s analysis focused primarily on the fourth O'Brien factor. Packingham had argued that statute was not narrowly tailored:

Specifically, defendant contends that the statute's definition of a “commercial social networking Web site” is overbroad, that the statute does not take into account the underlying offense of conviction or the likelihood of recidivism, that the statute does not require criminal intent, that the statute is underinclusive because, inter alia, it applies only to commercial Web sites, that less burdensome laws already exist to protect children from baleful Internet contacts, and that sufficient alternatives allowing communication do not exist.

The court rejected each of these arguments in turn, concluding that “the General Assembly has carefully tailored the statute in such a way as to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information about minors, thereby addressing the evil that the statute seeks to prevent.”

Further, because the statute includes “specific exceptions for Web sites that provide discrete e-mail, chat room, photo-sharing, and instant messaging services” and because there are “numerous alternatives” to the sites that Packingham highlighted in his brief, the court concluded that the law “leaves open ample channels of communication that registered sex offenders may freely access.” Thus, it held the statute facially constitutional under the First Amendment.

The court also rejected Packingham’s as-applied challenge, holding that “the incidental burden imposed upon this defendant, who is barred from Facebook.com but not from many other sites, is not greater than necessary to further the governmental interest of protecting children from registered sex offenders.” Finally, the court held that the statute was neither overbroad under the First Amendment nor void for vagueness under the Due Process Clause.

Justice Robin E. Hudson issued a dissent. She wrote that because the statute “completely bars registered sex offenders from communicating with others through many widely utilized commercial networking sites[,] . . . it primarily targets expressive activity usually protected by the First Amendment.” While not conceding that the law is content-neutral, Justice Hudson concluded it would fail even intermediate scrutiny. The statute’s definition of “commercial social networking Web site,” she wrote,

includes sites that are normally thought of as “social networking” sites, like Facebook, Google+, LinkedIn, Instagram, Reddit, and MySpace. However, the statute also likely includes sites like Foodnetwork.com, and even news sites like the websites for The New York Times and North Carolina's own News & Observer. . . . In short, however legitimate—even compelling—the State's interest in protecting children might be, the plausible sweep of the statute as currently written “create[s] a criminal prohibition of alarming breadth,” and extends well beyond the evils the State seeks to combat.

Supreme Court of the United States

On March 21, 2016, Packingham filed a petition for a writ of certiorari. Packingham argued that the North Carolina Supreme Court’s decision (1) incorrectly characterized the law as a conduct regulation in conflict with the U.S. Supreme Court’s precedent; (2) incorrectly applied the Court’s precedents concerning “narrowing tailoring” and “ample alternative channels”; and (3) was in conflict with several circuit court decisions regarding similar laws. Packingham also sounded the alarm about the implications of increasingly strict sex offender laws:

This case calls for [] intervention. The dynamic that led members of the North Carolina General Assembly—unanimously—to enact Section 202.5 is one that continues to be replayed in legislatures across the Nation. The “acorn[s]” sown in the early 2000s, when this Court upheld straightforward registration and notification requirements, have yielded not a lone “mighty oak,” but a dense thicket of restrictive laws whose undeniable effect and only evident purpose is to make more difficult the lives of persons on sex offender registries.

A group of legal scholars filed an amicus brief in favor of certiorari, arguing that the case offered the Court an opportunity to resolve disagreement in lower courts about the meaning of “ample alternative channels.” The North Carolina Supreme Court’s decision “looks more like a parody of the ‘ample alternative channels’ analysis than a serious application of that analysis,” the scholars argued.

Respondent North Carolina’s brief in opposition recited many of the state’s arguments from below and argued that the state Supreme Court’s decision was correct.

On October 28, 2016, the U.S. Supreme Court granted certiorari.

EPIC’s Interest

EPIC’s interest in this case is three-fold: (1) the case directly implicates the First Amendment; (2) enforcement of N.C. Gen. Stat § 14.202.5 encourages pervasive government monitoring of social media; and (3) § 14.202.5 appears to invade the privacy of registered offenders.

The First Amendment

Protecting the freedom of expression is one of EPIC’s primary organizational goals. EPIC has filed eight amicus briefs in cases that raised First Amendment concerns, two of those before the U.S. Supreme Court (Doe v. Reed and Watchtower Bible v. Stratton).

Several of EPIC’s amicus briefs have addressed the right of anonymity inherent in the First Amendment. In Watchtower Bible, EPIC argued that a local ordinance requiring registration and identification during door-to-door petitioning violated the right of anonymity. In Forensic Advisors, Inc. v. Matrixx Initiatives, Inc., EPIC and co-amici argued that the First Amendment right to read anonymously meant that a reporter could not be compelled to disclose a list of subscribers.

EPIC has also filed or joined amicus briefs arguing that the First Amendment prohibits compelled disclosure of petition signatories (Reed), the issuance of National Security Letter gag orders (Gonzales v. Doe), and the blanket nondisclosure of information about NSLs (In re National Security Letter).

Government Monitoring of Social Media

EPIC has long sounded the alarm about the privacy implications of government social media surveillance. In 2009, EPIC filed a Freedom of Information request with the Government Services Administration to obtain a series of contracts between the GSA and social media companies. The resulting disclosures showed that some of the contracts “explicitly grant[ed] some Web 2.0 companies the right to infringe on privacy rights.”

In 2011, EPIC filed a FOIA lawsuit against the Department of Homeland Security for information about the agency's surveillance of social networks and news organizations. The lawsuit forced the department to turn over hundreds of records, including instructions to contractor General Dynamics to track and report “positive and negative” reactions to government activities.

Most recently, in August 2016, EPIC filed comments with DHS urging the department to abandon a proposal to collect social media identifiers on I-94W forms (Nonimmigrant Visa Waiver Arrival/Departure Records). “The DHS proposal to collect social media identifiers of visiting aliens implicates the First Amendment and will have a chilling effect,” EPIC argued.

Section 14.202.5 and laws like it can only be effectively enforced through dragnet monitoring of social media, which poses a significant threat to privacy and chills free expression.

Invasions of Released Offenders’ Privacy

EPIC has also spoken out in the past about the overly intrusive nature of certain restrictions on registered sex offenders. In its Smith v. Doe amicus brief, EPIC argued that Alaska’s version of Megan’s Law—which permits the online dissemination of stigmatizing information collected from released offenders—was excessively invasive of offenders’ privacy. EPIC urged the court to strike “an appropriate balance between the state's interest in protecting its citizens from recidivism and protecting the registrants' privacy interests.”

As Packingham noted, § 14.202.5 is part of a “dense thicket of restrictive laws whose undeniable effect and only evident purpose is to make more difficult the lives of persons on sex offender registries.” Here, by strictly limiting the information that released offenders are permitted to receive and incentivizing monitoring of their online activities by law enforcement, the statute threatens the privacy rights of released offenders.