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N.C. Statute banning use of commercial social networking Web sites by sex offenders is Unconstitutional.

North Carolina, like many other states, has taken several measures to protect the public from future harmful acts committed by convicted sex offenders.  While it is impossible to to determine what a person may or may not do in the future, North Carolina takes a proactive approach in protecting the public.  Convicted sex offenders are often subject to a myriad of requirements under the law prohibiting them for participating in certain activities, being in certain locations, and mandating them to inform law enforcement of travel plans.

One such prohibition appears in N.C. Gen. Stat § 14-202.5, and is known as theBan use of commercial social networking Web sites by sex offenders”.  This statue essentially prohibits convicted sex offenders from accessing any social networking site that 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.  This particular statute has recently come under fire in Packingham v. North Carolina, and the Supreme Court of the United States has ruled it unconstitutional as violating the First Amendment’s protections on free speech.

In the newly decided Packingham v. North Carolina case, the Supreme Court was quick to note that, “sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people,” Ashcroft v. Free Speech Coalition, 535 U. S. 234, 244, and that a legislature “may pass valid laws to protect children” and other sexual assault victims, id., at 245. However, the assertion of a valid governmental interest “cannot, in every context, be insulated from all constitutional protections.” Stanley v. Georgia, 394 U. S. 557, 563.  However, the court was very concerned with the prohibitions scope on the types of speech it burdens.  Namely, that many people use various forms of social media not only as a means of communication, but also as a primary source for, “knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge”.

It appears that this opinion takes a hard-line approach to speech restrictions in cyberspace, and in many respects it does.  However, the opinion leaves open the possibility for other carefully crafted legislation which prohibits some similar conduct.  Of course, any such legislation would have to pass the appropriate level of scrutiny depending on which type of speech is addressed, and which forum the speech is regulated from. This may prove a daunting task for states wishing to restrict speech on the internet, even when legitimate government interests exist.


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