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Packingham v. North Carolina, USSC No. 15-1194, cert. granted 10/28/16

Question presented (as formulated by Scotusblog):

Whether, under the court’s First Amendment precedents, a law 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, 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!”

Lower court opinion: State v. Packingham, 777 S.E.2d 738 (N.C. 2015); USSC Docket; Scotusblog page

The question presented neatly packages the crucial facts here, though it’s worth emphasizing that Lester Packingham had completed his sentence and was not under any form of criminal supervision. He was simply on North Carolina’s sex offender registry–and that state makes it a crime for anyone on the registry to view a broad class of websites that permit minors to have accounts.

Also notable is the approach taken by the Packingham in seeking certiorari. Rather than trying to convince the Court that the case presents a thorny doctrinal question or the opportunity to resolve a circuit split, the petition dwells at length at the simple wrongness, in multiple senses, of the North Carolina Supreme Court’s decision upholding the law (though Amici Curiae law professors argue there is such a split in lower courts’ views on what might constitute “ample alternative channels” permitting restriction of some particular mode of communication). It notes that the law governs more than 21,000 people, and has been invoked in over 1,000 prosecutions, and then places it within the larger context of sex offender restrictions (citations selectively omitted):

This Court’s First Amendment cases have long condemned “regulations that discriminate based on the identity of the speaker,” or burden “a narrow class of disfavored speakers.” Such selective abridgments arouse heightened concern because of the danger that “the democratic majority” will enact restrictions of a politically marginalized minority that they would never “accept for themselves.” Indeed, landmark First Amendment decisions attest to a special role for this Court in safeguarding from State incursion the Free Speech rights of those who are misunderstood or vilified.

This case calls for such 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. See Catherine L. Carpenter & Amy E. Beverlin, The Evolution of Unconstitutionality in Sex Offender Registration Laws, 63 Hastings L.J. 1071, 1073 (2011-2012) (explaining that measures have “spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary”).

Wisconsin has no analogous statutory restrictions on registrants; a prohibition on their photographing minors was recently struck down in State v. Oatman, 2015 WI App 76, 365 Wis. 2d 242, 871 N.W.2d 513. This case certainly has the potential, however, to suggest some limits on how far states may go in making “more difficult the lives of persons on sex offender registries.”

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