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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Courts Recognize First Amendment Right to Social Media Use

Posted in Litigation, Social Media, United States

A North Carolina appellate court recently held that a statewide ban on sex offenders’ access to social media violates the First Amendment.  The opinion is the latest in a string of recent federal and state court decisions to recognize a First Amendment right to access social media. 

In 2008, North Carolina’s General Assembly enacted the Protect Children from Sexual Predators Act, which bans the use of “commercial social networking Web sites” by registered sex offenders, if the sex offender knows that the site allows minors to become members or create web pages on the site. 

In May 2012, a jury found Lester Gerard Packingham, a registered sex offender, guilty of violating the statute by creating a social networking profile.  He was sentenced to six to eight months of imprisonment, suspended, and 12 months of supervised probation.

Packingham appealed.  On August 20, the Court of Appeals of North Carolina agreed with Packingham that the statute violates the First Amendment because it is too broad and vague. 

The Court wrote that the statute is overly broad because it applies to all registered sex offenders, regardless of the crime that they committed. 

The Court also concluded that the statute applies to an unnecessarily broad category of web sites.  The statute broadly defines “commercial social networking Web site” as any web site that:

  • Is operated by a person who receives revenue from operating the website, such as membership fees or advertising revenue;
  • “Facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges;
  • Enables users to create profiles or web pages with personal information, links, or photographs; and
  • Provides communications mechanisms such as message boards, chat rooms, and email.

In addition to covering traditional social media web sites, the Court noted, the ban also could apply to the Food Network’s web site, Google, and Amazon. “In its overall application,” 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.”

On August 26, the Supreme Court of North Carolina stayed the decision, allowing the state to appeal. 

The decision is in line with a number of recent opinions confronting the same issue.  Since last year, the U.S. Court of Appeals for the Seventh Circuit, U.S. District Court for the District of Nebraska, and U.S. District Court for the Middle District of Louisiana have found similar bans on social media use by sex offenders to be unconstitutional.