State v. Packingham

Decision Date20 August 2013
Docket NumberNo. COA12–1287.,COA12–1287.
Citation748 S.E.2d 146
PartiesSTATE of North Carolina v. Lester Gerard PACKINGHAM.
CourtNorth Carolina Court of Appeals

748 S.E.2d 146

STATE of North Carolina
v.
Lester Gerard PACKINGHAM.

No. COA12–1287.

Court of Appeals of North Carolina.

Aug. 20, 2013.






Held Unconstitutional
N.C. Gen.Stat. § 14–202.5 (2011)

[748 S.E.2d 148]

Appeal by defendant from judgment entered 30 May 2012 by Judge William Osmond Smith in Durham County Superior Court. Heard in the Court of Appeals 23 May 2013.

Attorney General Roy Cooper, by Assistant Attorney General David L. Elliott, for the State.

Glenn Gerding, for defendant.


ELMORE, Judge.

Lester Gerard Packingham (defendant), a registered sex offender, appeals from a judgment entered upon a jury conviction for accessing a commercial social networking Web site, pursuant to N.C. Gen.Stat. § 14–202.5 (2011). Defendant challenges the statute as unconstitutional. For the reasons stated herein, we agree. Accordingly, we vacate the judgment of the trial court.

I. Background

Chapter 14, Article 27A of our general statutes governs the Sex Offender and Public Protection Registration Programs (the Registry). “The General Assembly recognizes that sex offenders often pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and that protection of the public from sex offenders is of paramount governmental interest.” N.C. Gen. Stat § 14–208.5 (2011). Accordingly, the stated purpose of the Registry is to protect the public and children from the risk of recidivism by sex offenders and to aid “law enforcement officers' efforts to protect communities, conduct investigations, and quickly apprehend offenders” because sex offenders “pose significant and unacceptable threats to the public safety and welfare of children.” Id.

As part of the Registry, persons convicted on or after 1 January 1996 of sexually violent offenses or certain offenses against minors must register as a sex offender. In doing so, they must provide the sheriff's office in the county in which they reside with all pertinent personal information set forth in N.C. Gen.Stat. § 14–208.7(b) (2011). “Registration shall be maintained for a period of at least 30 years following the date of initial county registration unless the person, after 10 years of registration, successfully petitions the superior court to shorten his or her registration time period under G.S. 14.208.12A.” N.C. Gen.Stat. § 14–208.7(a)(2) (2011). Alternatively, “[a]ny person who is a recidivist, who commits an aggravated offense, or who is determined to be a sexually violent predator” is required to register under the Sexually Violent Predator Registration Program. N.C. Gen.Stat. § 14–208.6A (2011). A violation of the registration requirements is a Class F felony. N.C. Gen.Stat. § 14–208.11 (2011).

On 1 December 2008, the General Assembly enacted N.C. Gen.Stat. § 14–202.5 as part of the Protect Children from Sexual Predators Act. NC B. Summ., 2008 Reg. Sess. S.B. 132. The statute bans the use of

[748 S.E.2d 149]

commercial social networking Web sites by any registered sex offender:

(a) Offense.—It is unlawful for a sex offender who is registered in accordance with Article 27A of Chapter 14 of the General Statutes to access a 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.

(b) For the purposes of this section, a “commercial social networking Web site” is an Internet Web site that meets all of the following requirements:

(1) Is operated by a person revenue from membership fees, or other sources related to the the Web site.

(2) Facilitates the social between two or more persons for of friendship, meeting other information exchanges.

(3) Allows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Web site.

(4) Provides users or visitors to the commercial social networking Web site mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.

(c) A commercial social networking Web site does not include an Internet Web site that either:

(1) Provides only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform; or

(2) Has as its primary purpose the facilitation of commercial transactions involving goods or services between its members or visitors.

(d) Jurisdiction.—The offense is committed in the State for purposes of determining jurisdiction, if the transmission that constitutes the offense either originates in the State or is received in the State.

(e) Punishment.—A violation of this section is a Class I felony.

N.C. Gen.Stat. § 14–202.5 (2011).


In the case sub judice, defendant was convicted of taking indecent liberties with a child in 2002. Accordingly, he became a registered sex offender. In 2010, in an effort to enforce N.C. Gen.Stat. § 14–202.5, the Durham Police Department began investigating profiles on the Web sites Myspace.com and Facebook.com for evidence of use by registered sex offenders. An officer recognized defendant in a profile picture belonging to Facebook user “J.R. Gerard,” then confirmed that defendant was the person who created the profile page. Thereafter, defendant was indicted on 20 September 2012 for maintaining at least one personal Web page or profile on Facebook.com in violation of N.C. Gen.Stat. § 14–202.5.

At a pretrial hearing, defendant moved to dismiss the charge on the basis that N.C. Gen.Stat. § 14–202.5 was unconstitutional. The trial court joined defendant's motion with a similar motion made by another defendant. Superior Court Judge Michael R. Morgan denied the joint motion, finding that the statute was constitutional as applied to both defendants. He declined to rule on the statute's facial constitutionality for want of jurisdiction. Defendant in the case sub judice, and the other defendant, filed a joint appeal with this Court, which we denied on 22 June 2011.

On 30 May 2012, a jury found defendant guilty of accessing a commercial social networking Web site. Defendant was sentenced to 6 to 8 months imprisonment, suspended, and placed on 12 months of supervised probation. Defendant now appeals.

II. Analysis

On appeal, defendant challenges N.C. Gen.Stat. § 14–202.5 (2011) on the basis that it violates his federal and state constitutional rights to free speech, expression, association, assembly, and the press under the First and Fourteenth Amendments. Additionally, he asserts that the statute is overbroad, vague,

[748 S.E.2d 150]

and not narrowly tailored to achieve a legitimate government interest. We agree.

This case presents the single legal question of whether N.C. Gen.Stat. § 14–202.5 is unconstitutional. “The standard of review for questions concerning constitutional rights is de novo. Furthermore, when considering the constitutionality of a statute or act there is a presumption in favor of constitutionality, and all doubts must be resolved in favor of the act.” State v. Daniels, ––– N.C.App. ––––, ––––, 741 S.E.2d 354, 363 (2012), appeal dismissed, review denied,––– N.C. ––––, 738 S.E.2d 389 (N.C.2013) (internal quotations and citations omitted).

A. Level of Scrutiny

The statute plainly involves defendant's First Amendment rights as incorporated through the Fourteenth Amendment because it bans the freedom of speech and association via social media. “[A] statute regulating the time, place and manner of expressive activity is content-neutral in that it does not forbid communication of a specific idea.” State v. Petersilie, 334 N.C. 169, 183, 432 S.E.2d 832, 840 (1993) (quotation marks and citations omitted). N.C. Gen.Stat. § 14–202.5 (2011) is content neutral because it restricts access to commercial social networking Web sites without any reference to the content or type of speech disseminated or posted thereon. See Turner Broad. Sys. v. FCC, 512 U.S. 622, 641–42, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). 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 of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661, 675 (1989). In the instant case, we conclude that the statute is not narrowly tailored; accordingly, we decline to address whether the statute leaves open alternative channels for communication. See Doe v. Prosecutor, 705 F.3d 694, 698 (7th Cir.2013).

B. Narrow Tailoring

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.” Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 2503, 101 L.Ed.2d 420, 432 (1988) (citation omitted).

[T]he requirement of narrow tailoring is satisfied so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.... So long as the means chosen are not substantially broader than necessary to achieve the government's interest, ... the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative.

Ward, 491 U.S. at 799–800, 109 S.Ct. at 2758, 105 L.Ed.2d at 680–81 (quotation marks and citations omitted). The State must also “demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in...

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7 cases
  • Doe v. Harris
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 18, 2014
    ...sex offenders to produce their email addresses, usernames, and password was subject to intermediate scrutiny); State v. Packingham, 748 S.E.2d 146, 149–50 (N.C.App.2013) (North Carolina statute banning use of social networking sites by sex offenders was subject to intermediate scrutiny). We......
  • Doe v. Harris
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 18, 2014
    ...sex offenders to produce their email addresses, usernames, and password was subject to intermediate scrutiny); State v. Packingham, 748 S.E.2d 146, 149–50 (N.C.App.2013) (North Carolina statute banning use of social networking sites by sex offenders was subject to intermediate scrutiny). We......
  • John Doe v. Harris
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 18, 2014
    ...sex offenders to produce their email addresses, usernames, and password was subject to intermediate scrutiny); State v. Packingham, 748 S.E.2d 146, 149–50 (N.C.App.2013) (North Carolina statute banning use of social networking sites by sex offenders was subject to intermediate scrutiny). We......
  • State v. Packingham
    • United States
    • North Carolina Supreme Court
    • November 6, 2015
    ...of speech and association via social media" and concluded that intermediate scrutiny was appropriate. State v. Packingham, 229 N.C.App. 293, 296–97, 748 S.E.2d 146, 150 (2013). While acknowledging the legitimate state interest in protecting children from sex offenders, the Court of Appeals ......
  • Request a trial to view additional results

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