RALEIGH — In an October decision, the state’s highest court reinstated a ban on registered sex offenders using certain social media websites, finding that the ban as written does not violate the free speech protections in the First Amendment.

Lester Gerald Packingham was convicted of taking indecent liberties with a child in 2006 and was required to register as a sex offender. Two years later, the state passed a law banning sex offenders from using Internet social media sites on which minors could create profiles. To enforce this law, the Durham Police Department examined profiles on Facebook and MySpace and found one created by Packingham.

At trial, a Superior Court judge rejected Packington’s claim that the law was unconstitutional. After being convicted by a jury, Packington received a suspended prison sentence and was placed on probation for a year. He appealed.

The N.C. Court of Appeals overturned Packingham’s conviction, finding that the law was unconstitutional, as it “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.”

On appeal, the N.C. Supreme Court took the case, and in September 2014 held oral arguments.

A key question before the high court was whether Packingham’s use of Facebook amounted to conduct or speech.

“First Amendment protection of speech is extended to conduct only when the conduct in question ‘is inherently expressive,’” explained Justice Robert Edmunds, writing for the court.

“In contrast, a regulation that governs conduct while imposing only an incidental burden upon speech ‘must be evaluated in terms of [its] general effect.’ 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.’

Edmunds concluded that using social media sites amounted to conduct, not speech.

“The essential purpose of [the law] is to limit conduct, specifically the ability of registered sex offenders to access certain carefully-defined Web sites. This limitation on conduct only incidentally burdens the ability of registered sex offenders to engage in speech after accessing those Web sites that fall within the statute’s reach. Thus we conclude that [the statute] is a regulation of conduct.”

The Court of Appeals also concluded that the law was overly restrictive. Four of the N.C. Supreme Court’s seven members did not agree.

“While we acknowledge that defendant has identified some areas in which the statute could have been drafted even more narrowly, we conclude that the statute is sufficiently narrowly drawn,” wrote Edmunds.

“In his brief and argument to this Court, defendant lists numerous well-known websites that he contends he could not access legally. In considering those and other similar sites, we find that even where defendant is correct, the Web offers numerous alternatives that provide the same or similar services that defendant could access without violating [state law].”

Edmunds noted that Packingham and other registered sex offenders could share pictures using Shutterfly and post their resumes on Glassdoor, as those sites required users to be at least 18 years of age.

The majority rejected Packingham’s claim the statue was too vague, finding that under any reasonable interpretation of the statue, it applied to Facebook, which is the site Packingham was convicted of using.

Justices Robin Hudson and Cheri Beasley dissented.

“This statute completely bars registered sex offenders from communicating with others through many widely utilized commercial networking sites. Therefore, in my view, it primarily targets expressive activity usually protected by the First Amendment,” Hudson wrote.

Hudson in particular found the majority’s reliance on a 1968 U.S. Supreme Court case about the express conduct in burning a draft card to be mistaken. Instead, Hudson said she would analyze the law using the U.S. Supreme Court’s traditional free speech jurisprudence.

“Here, there is no dispute that the state’s purported concern — protecting minors from exploitation by registered sex offenders using the Internet — qualifies as a legitimate and significant government interest. The central question, then, is whether [the state law] ‘burden[s] substantially more speech than necessary’ in support of that interest.

“I conclude that it does.”

Justice Sam Erwin IV, who was not a member of the court when the case was heard, did not participate in the ruling.

The case is State v. Packingham, (366PA13).

Michael Lowrey is an associate editor of Carolina Journal.