State v. Packingham, No. 366PA13.

Docket NºNo. 366PA13.
Citation368 N.C. 380, 777 S.E.2d 738
Case DateNovember 06, 2015
CourtUnited States State Supreme Court of North Carolina

368 N.C. 380
777 S.E.2d 738

STATE of North Carolina
v.
Lester Gerard PACKINGHAM.

No. 366PA13.

Supreme Court of North Carolina.

Nov. 6, 2015.


Roy Cooper, Attorney General, by Anne M. Middleton and David L. Elliott, Assistant Attorneys General, for the State-appellant.

Glenn Gerding, Appellate Defender,1 for defendant-appellee.

EDMUNDS, Justice.

368 N.C. 381

The Court of Appeals vacated defendant's conviction for accessing a social networking Web site as a registered sex offender, finding that the applicable statute, N.C.G.S. § 14–202.5, is unconstitutional both on its face and as applied to defendant. We conclude that the statute is constitutional in all respects. Accordingly, we reverse the holding to the contrary of the Court of Appeals.

777 S.E.2d 742

In 2008, the General Assembly enacted N.C.G.S. § 14–202.5, which bans the use of commercial social networking Web sites by registered sex offenders. In April 2010, Officer Brian Schnee of the Durham Police Department began an investigation to detect such sex offenders living in Durham who were illegally accessing commercial social networking Web sites. Officer Schnee identified defendant Lester Gerard Packingham (defendant), who had been convicted in 2002 of a sexual offense in Cabarrus County, North Carolina, as a registered sex offender subject to N.C.G.S. § 14–202.5. Officer Schnee located defendant's name and photograph on the North Carolina Department of Justice Sex Offender Registry. While investigating the Web site Facebook.com, Officer Schnee found a user profile page that, based upon the profile photo, he believed belonged to defendant. Although the name on the Facebook account was "J.R. Gerrard," Officer Schnee was able to confirm that the Facebook page in fact was defendant's. During a subsequent search of defendant's residence, officers recovered a notice of "Changes to North Carolina Sex Offender Registration Laws" signed by defendant describing commercial social networking Web sites that he was prohibited from accessing. This document was admitted into evidence at trial.

368 N.C. 382

On 20 September 2010, defendant was indicted by a Durham County grand jury for violating N.C.G.S. § 14–202.5. On 9 December 2010, defendant filed a motion to dismiss the charge in Superior Court, Durham County, contending that section 14202.5 is unconstitutional on its face or as applied to him. On 19 April 2011, the trial court entered an order denying defendant's motion. The trial court's order included a finding of fact that both the State and defendant agreed that Facebook.com is a social networking Web site as contemplated by N.C.G.S. § 14–202.5. The trial court declined to address defendant's facial challenge but found that N.C.G.S. § 14–202.5 was constitutional as applied to defendant. On 22 June 2011, the Court of Appeals denied defendant's petition for certiorari.

The case went to trial and, after considering evidence that defendant maintained a Facebook page, a jury on 30 May 2012 found defendant guilty of one count of accessing a commercial social networking Web site by a registered sex offender. The trial court sentenced defendant to a term of six to eight months of imprisonment, suspended for twelve months, and defendant was placed on supervised probation.

Defendant appealed to the Court of Appeals, challenging the constitutionality of N.C.G.S. § 14–202.5. That court determined that N.C.G.S. § 14–202.5 "plainly involves defendant's First Amendment rights ... because it bans the freedom 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 found that the statute "is not narrowly tailored, is vague, and fails to target the ‘evil’ it is intended to rectify" because it "arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal." Id. at 304, 748 S.E.2d at 154. The court further concluded that the language of N.C.G.S. § 14–202.5 "lacks clarity, is vague, and certainly fails to give people of ordinary intelligence fair notice of what is prohibited." Id. at 302, 748 S.E.2d at 153. Accordingly, finding that the statute violates the First Amendment, the Court of Appeals held the statute unconstitutional on its face and as applied, and vacated defendant's conviction. Id. at 304, 748 S.E.2d at 154. On 7 November 2013, this Court allowed the State's Petition for Discretionary Review.

Statutes are presumed constitutional, Wayne Cty. Citizens Ass'n for Better Tax Control v. Wayne Cty. Bd. of Comm'rs, 328 N.C. 24, 29, 399 S.E.2d 311, 314–15 (1991), and the interpretation of a statute is

368 N.C. 383

controlled by the intent of the legislature, State v. Hart, 287 N.C. 76, 80, 213 S.E.2d 291, 294–95 (1975). We review challenges to the constitutionality of a statute de novo.

777 S.E.2d 743

In re Adoption of S.D.W., 367 N.C. 386, 391, 758S.E.2d 374, 378 (2014) (citing Libertarian Party of N.C. v. State, 365 N.C. 41, 46, 707 S.E.2d 199, 202–03 (2011) ).

Defendant argues that N.C.G.S. § 14–202.5 is unconstitutional both on its face and as applied to him, contending that the statute violates his right to free speech as guaranteed by the United States and North Carolina Constitutions. U.S. Const. amend. I ("Congress shall make no law ... abridging the freedom of speech...."); N.C. Const. art. I, § 14 ("Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained...."). As we begin our analysis, we note that while these constitutional provisions appear absolute, "[h]istory, necessity, and judicial precedent have proven otherwise: ‘Freedom of speech is not an unlimited, unqualified right.’ " Hest Techs., Inc. v. State ex rel. Perdue, 366 N.C. 289, 297, 749 S.E.2d 429, 435 (2012) (quoting State v. Leigh, 278 N.C. 243, 250, 179 S.E.2d 708, 712 (1971) ), cert. denied, – –– U.S. ––––, 134 S.Ct. 99, 187 L.Ed.2d 34 (2013). In addition, when analyzing alleged violations of our State Constitution's Free Speech Clause, this Court has given great weight to the First Amendment jurisprudence of the United States Supreme Court. See State v. Petersilie, 334 N.C. 169, 184, 432 S.E.2d 832, 841 (1993) (adopting that Court's First Amendment jurisprudence "[i]n this case").

The issue before us is whether the proscription of access to some social networking Web sites violates the First Amendment. An as-applied challenge contests whether the statute can be constitutionally applied to a particular defendant, even if the statute is otherwise generally enforceable. Frye v. City of Kannapolis, 109 F.Supp.2d 436, 439 (M.D.N.C.1999). A facial challenge maintains that no constitutional applications of the statute exist, prohibiting its enforcement in any context. Id. The constitutional standards used to decide either challenge are the same. Edwards v. District of Columbia, 755 F.3d 996, 1001 (D.C.Cir.2014).

We begin by considering defendant's facial challenge, cognizant that a facial attack on a statute imposes a demanding burden on the challenger. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697, 707 (1987). This Court rarely upholds facial challenges because "[t]he fact that a statute ‘might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.’ " State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998) (quoting Salerno, 481 U.S. at 745, 107 S.Ct. at 2100, 95 L.Ed.2d at 707 ).

368 N.C. 384

The First Amendment is triggered by regulations that burden speech, so we must make an initial determination whether N.C.G.S. § 14–202.5 is a regulation of speech or a regulation of conduct. The distinction is critical because a statute that regulates speech is "subjected to exacting scrutiny: The State must show that the ‘regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.’ " Burson v. Freeman, 504 U.S. 191, 198, 112 S.Ct. 1846, 1851, 119 L.Ed.2d 5, 14 (1992) (plurality) (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794, 804 (1983) ). First Amendment protection of speech is extended to conduct only when the conduct in question "is inherently expressive." Rumsfeld v. Forum for Acad. & Inst'l Rights, Inc., 547 U.S. 47, 66, 126 S.Ct. 1297, 1310, 164 L.Ed.2d 156, 175 (2006). In contrast, a regulation that governs conduct while imposing only an incidental burden upon speech "must be evaluated in terms of [its] general effect." United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536, 548 (1985). An incidental burden on speech is permissible "so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." Id.

The statute at issue provides in pertinent part:

(a) Offense. —It
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17 practice notes
  • State v. Taylor, No. COA18-810
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • March 17, 2020
    ...applied to a particular defendant, even if the statute is otherwise generally enforceable." 841 S.E.2d 796 State v. Packingham , 368 N.C. 380, 383, 777 S.E.2d 738, 743 (2015) (citation omitted), rev'd and remanded on other grounds , ––– U.S. ––––, 137 S.Ct. 1730, 198 L. Ed. 2d 273 (2017). T......
  • State v. Grady, No. 179A14-3
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • August 16, 2019
    ...whether a statute is unconstitutional as applied is strongly influenced by the facts in a particular case." State v. Packingham , 368 N.C. 380, 393, 777 S.E.2d 738, 749 (2015), rev'd and remanded , ––– U.S. ––––, 137 S. Ct. 1730, 198 L.Ed.2d 273 (2017). This case was remanded by the 372 N.C......
  • M.E. v. T.J., No. COA18-1045
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 31, 2020
    ...the regulation and the interest, and regulation no more restrictive than necessary to achieve that interest." State v. Packingham , 368 N.C. 380, 387, 777 S.E.2d 738, 745 (2015) (citation omitted), rev'd on other grounds , North Carolina v. Packingham , ––– U.S. ––––, 137 S.Ct. 1730, 198 L.......
  • State v. R.K., DOCKET NOS. A-2022-18T2
    • United States
    • New Jersey Superior Court – Appellate Division
    • April 27, 2020
    ...North Carolina affirmed the conviction "concluding the law is ‘constitutional in all respects.’ " Id. at 1735 (citing State v. Packingham, 368 N.C. 380, 777 S. E. 2d 738, 741 (2015) ).In a unanimous opinion, the Supreme Court reversed the North Carolina high court, concluding the law uncons......
  • Request a trial to view additional results
17 cases
  • State v. Taylor, No. COA18-810
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • March 17, 2020
    ...applied to a particular defendant, even if the statute is otherwise generally enforceable." 841 S.E.2d 796 State v. Packingham , 368 N.C. 380, 383, 777 S.E.2d 738, 743 (2015) (citation omitted), rev'd and remanded on other grounds , ––– U.S. ––––, 137 S.Ct. 1730, 198 L. Ed. 2d 273 (2017). T......
  • State v. Grady, No. 179A14-3
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • August 16, 2019
    ...whether a statute is unconstitutional as applied is strongly influenced by the facts in a particular case." State v. Packingham , 368 N.C. 380, 393, 777 S.E.2d 738, 749 (2015), rev'd and remanded , ––– U.S. ––––, 137 S. Ct. 1730, 198 L.Ed.2d 273 (2017). This case was remanded by the 372 N.C......
  • M.E. v. T.J., No. COA18-1045
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 31, 2020
    ...the regulation and the interest, and regulation no more restrictive than necessary to achieve that interest." State v. Packingham , 368 N.C. 380, 387, 777 S.E.2d 738, 745 (2015) (citation omitted), rev'd on other grounds , North Carolina v. Packingham , ––– U.S. ––––, 137 S.Ct. 1730, 198 L.......
  • State v. R.K., DOCKET NOS. A-2022-18T2
    • United States
    • New Jersey Superior Court – Appellate Division
    • April 27, 2020
    ...North Carolina affirmed the conviction "concluding the law is ‘constitutional in all respects.’ " Id. at 1735 (citing State v. Packingham, 368 N.C. 380, 777 S. E. 2d 738, 741 (2015) ).In a unanimous opinion, the Supreme Court reversed the North Carolina high court, concluding the law uncons......
  • Request a trial to view additional results

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