Opposition Brief — Packingham v. North Carolina, 137 S. Ct. 368 (2016) (No. 15-1194)

—/P No. 15-1194

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In the

Supreme Court of the United States

LESTER GERARD PACKINGHAM,

Petitioner,

Vv.

STATE OF NORTH CAROLINA,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of North Carolina

BRIEF FOR RESPONDENT IN OPPOSITION

ROY COOPER

Attorney General of North Carolina

Anne Murray Middleton*

Special Deputy Attorney General

North Carolina Department of Justice

Post Office Box 629

Raleigh, N.C. 27602-0629

(919) 716-6500

amiddleton@ncdoj.gov

June 2016 *Counsel of Record

ATE OETA LETS GE, SEE ALT TE I TIE IE a I EE ELIE I EO

QUESTION PRESENTED

To confront the threat sexual predators pose to

children, the North Carolina Legislature enacted a

statute that forbids registered sex offenders from

accessing “commercial social networking Web sites”

that permit minors to become members. N.C. Gen.

Stat. §14-202.5. Petitioner, a registered sex offender,

was convicted of violating the statute by creating and

accessing a Facebook page. Facebook’s terms of use

expressly forbid convicted sex offenders from using

the site. The question presented is:

Whether the North Carolina Supreme Court

correctly held, applying intermediate scrutiny, that

the prosecution of petitioner under §14-202.5 did not

violate the First Amendment.

li

TABLE OF CONTENTS

QUESTION PRESENTED..............2...-+--esseecccsssessoneees i

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C. Lower Court Proceedingg.....................:::00006 nS)

REASONS FOR DENYING THE PETITION......... 13

I. THE NORTH CAROLINA SUPREME

COURTS DECISION DOES NOT

CONFLICT WITH DECISIONS OF

OTHER APPELLATE COURTS ................ 13

A. North Carolina’s statute differs

from the state social networking

bans other courts have addressed...... 13

B. The other lower court decisions

upon which petitioner relies do not

remotely create a conflict worthy of

this Court’s review ..............2ceeeeeeeeeeeeee 18

il

Il. THE NORTH CAROLINA SUPREME

COURT'S APPLICATION OF

INTERMEDIATE SCRUTINY TO

N.C. GEN. STAT. §14-202.6 DOES NOT

MERIT THIS COURT'S REVIEW ............. 21

lil. THE NORTH CAROLINA SUPREME

COURT'S DECISION WAS CORRECT... 26

A. Section 14-202.5 is narrowly

igen eee 26

B. Section 14-202.5 leaves ample

alternative channels of

el 35

ERR LSE ee IS eed BC fr NP MORRO TE 38

1V

TABLE OF AUTHORITIES

Cases

Bond v. United States,

Be ee i Bre a i ocictsenconsiccdecsevessiwinivsstecivensts 31

Brown v. Entertainment Merchants Ass’n,

ee Bk Re | | Ree Aeron 29

Burson v. Freeman,

Bas Te I sks oc eves neces chaustesunveeunevecoual 28

City of Ladue v. Gille,

ee ee I cs <ccxsicucncnecsnspnchcusencee vensadyacaly 37

Clark v. Community for Creative Non- Violence,

ee I ansisisssdencgninconncslasondobbdadubeceseen 21

Conn. Dept. of Pub. Safety v. Doe,

Lt Ee A , Fe

Doe v. City of Albuquerque,

O67 F.34 11115 CiGER Cir. BOL) ..0.........csccesceeess 19

Doe v. Harris,

rgp So fF eg le | ene 19

Doe v. Jindal,

853 F. Supp. 2d 596 (M.D. La. 2012)............ 16, 17

Doe v. Nebraska,

898 F. Supp. 2d 1086 (D. Neb. 2012)............ 16, 17

Doe v. Prosecutor, Marion County,

705 F.3d 694 (7th Cir. 2013)....................... passim

Doe v. Shurtleff,

GBS Foe 2Bl7 CLOG Cir. DOIG)... .cc....c..cccc...2: 19

Frisby v. Schuliz,

A Ss I in cs cbt idae eniitdintatiese 28, 30, 31

Hill v. Colorado,

NE I or os co rs canes pinmanbaadainatine 28, 29

Kennedy v. Louisiana,

as eo oS ed 2

Lloyd Corp. v. Tanner,

re ne 24

McCullen v. Coakley,

BO Oh I I ona sce cece cesececesess ee 28

Members of City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789 (1984)....... 24

Renton v. Playtime Theatres,

V8 BE ACCC

Smith v. Doe,

RN ans conc als anulinpasiokhs onsiaunbaveunadeah 2

United States v. O’Brien,

i Be nists iccndickinn catia sceacckelon 11, 21,22

vi

United States v. Stevens,

ee iassccscensonicadcdscecbeickasmasyosees 24, 25

United States v. Williams,

Es I oniecisbinisiineecnssditnrleccaenntoosensnnies 31

Virginia v. Hicks,

ETc IUD sisices screened csenssedorcasinnsnsooestoss 25

Ward v. Rock Against Racism,

Se Se Fe He icitchnsansascsevetcssscauivasesnsts passim

Statutes

Se EI ibis sav cescsnsecenecsrescrarexieennds 14, 16

Sk I, TN FA OPO vce vccvccnssecvisssaxccovseh 17, 18

Bec Ss PII SII sce sivas csvecereveasessesesecs passim

N.C. Gen. Stat. §14-202.5(a)............... icone mtolentanedies 6

POS, Gham, I, BEG oo asin Secsis ie tesicnsesncocsseeccenss 7

N.C. Gooms, GibaS. B16- BE BaD) ois. cs ssescescesssccsvesecnsveees 6

PUA), Glare, TR Be sins secs icscccsccccsccoress F

N.C. Gen. Stat. §14-202.5(b)(38)..............ccccssceseeees 7, 30

N.C. Gen. Stat. §14-202.5(b)(4).................ceccceeeees 7, 30

res I ee hates vcs ecovesasivceevonecominiens 17

N.C. Gen. Stat. $14-2023.5(6)(1) ...........0..cecceereseees 7,16

eA: CR H, Se IID cnc cccs tncccsssesestsasissenses 7

ie: MIs TE HEE iscwcnntineteincunvilcivendbsecesscueseesens 4

ee Ss hs Se iri tesestsan<iescesscesemsessees 5,6

N.C. Gen. Stat. §14-208.6(4)(a)...........ccsccccceccescesees 4,5

BE.6l. GRO. TER. RGD os cireveerne vices nsasrentonscsisvesers 4.5

A, Se ee I A iiericoticras socinscnssencwcereceseseion 17

Bie A alarrcticasavsntressevnsnesannesinanesaies 4

Secondary Sources

C.M. Rennison, Rape and Sexual Assault:

Reporting to Police and Medical Attention,

1992-2000 (Washington, DC: US.

Department of Justice, Bureau of Justice

Statistics, August 2002, NCJ 194530),

http://www.nij.gov/topics/crime/rape-sexual-

violence/pages/rapenotific-ation.aspxX. ..............++. 33

Comment: Why Don't You Take a Seat Away

from that Computer?: Why Louisiana Revised

Statute 14:91.2 Is Unconstitutional, 73 La. L.

rs Re IIE ocicteiindoscatiabeseacnitikenidinindinbadienesemees

Larry M. Eig, Statutory Interpretation:

General Principles and Recent Trends

(Congressional Research Service 2011),

http://fas.org/sgp/ crs/ misc/97-589.pdf.................

Facebook.com, Terms of Service, Statement of

Rights and Responsibilities, Registration and

Account, item 6, www-.facebook.com/legal/

Joint Statement on Key Principles of Social

Networking Sites Safety @Jan. 14, 2008)

(MySpace), http://www.ncdoj.gov/getattach

ment/78eac9be-5ee9-4ffe-b2fb-le76da3a4574/

MySpace-Agreement-Joint-Statement-on-

a Fa icdctbenrchcncsnnaidedhauniainmnascuncenieiense

Joint Statement on Key Principles of Social

Networking Sites Safety (May 8, 2008)

(Facebook), http://www.nj.gov/oag/newsre-

leases 08/Facebook-Joint-Statement.pdf............

National Institute of Justice, “Reporting of

Sexual Violence Incidents, http://www.nij.gov

/topics/crime/rape-sexual-violence/pages/rape-

notificiation.aspx. ...............----

N.C. Department of Justice, Law Enforcement

Liaison Section, The North Carolina Sex

Offender & Public Protection Registration

PD Es SE piiictedetnntinencegeevessacdecennactesees

00

Online Predators/Internet Predators,

http://www.minor-monitor.com/resource/on-

line-predators/ (March 14, 2012).............0006 14, 27, 28

Sex Offender Management Assessment and

Planning Initiative (Washington, DC: U.S.

Department of Justice, Office of Justice

Programs, Office of Sex Offender Sentencing,

Monitor'-g, Apprehending, Registering, and

Tracking, October 2014, NCJ 247059),

http://smart.gov/SOMAPI/pdfs/SOMAPI_Full%

Ns rreisincécheretsiing ssanssetsnddiacsivesdarnbonaias 31, 32,

33, 34

Stephen M. Shapiro et al., Supreme Court

PE Cm Os HI ptcvstincctesessnecescccecsinatonss 17, 22

INTRODUCTION

“Sex offenders are a serious threat in this

Nation.” Conn. Dept. of Pub. Safety v. Doe, 538 U.S.

1, 4 (2003) Gnternal quotation marks omitted). This

Court has recognized that victims of sexual assault

are most often juveniles, and that “when convicted

sex offenders reenter society, they are much more

likely than any other type of offender to be re-

arrested for a new rape or sex assault.” Jd. North

Carolina, hke all other States, has responded to

these facts by adopting statutes designed “to protect

its communities from sex offenders and to help

apprehend repeat sex offenders.” /d.

Sexual predators’ use of the Internet has created

special challenges to society as it attempts to protect

its most vulnerable members. The Internet does not

merely allow predators to communicate more easily

with children whom they stalk. It also allows them to

gain intimate information about children’s social

lives, families, hobbies, and hangouts. Predators

then use that information to target an unwitting

victim, either in person or online, under the guise of

familiarity or shared interests.

North Carolina enacted N.C. Gen. Stat. §14-

202.5 to thwart that conduct. It does so by barring

registered sex offenders from using the subset of

social networking sites that can provide predators

with the opportunity to obtain personal information

about children. Like other nonpunitive statutes

imposing restrictive measures on sex offenders

adjudged to be dangerous, it imposes criminal

penalties for its violation. See Smith v. Doe, 538 U.S.

84 (2003); see also Kennedy v. Louisiana, 554 U.S.

407, 457-58 & n.5 (2008) (Alito, J., dissenting)

(noting various measures developing across the

country to respond to the problem of child sexual

abuse). Petitioner does not, and cannot, dispute that

he is a registered sex offender subject to §14-202.5;

that Facebook is one of the websites the statute bars

him from using; that he violated the statute by

creating a profile page on Facebook; and that

Facebook independently bars him from accessing the

site based on his prior conviction as a sex offender.

His First Amendment challenge to §14-202.5, as

applied to him and facially, failed in the North

Carolina state courts. It does not merit further

review.

To assess the statute’s validity, the North

Carce!\na Supreme Court applied the intermediate-

scrutiny test set out in Ward v. Rock Against

Racism, 491 U.S. 781 (1989)—the very test petitioner

would apply. The court’s application of that well-

established test does not conflict with the decisions

of other courts that have addressed “social media”

bans, all of which involved statutes imposing broader

bans. Nor does the court’s decision create any other

meaningful conflict with another appellate court.

Petitioner is also a poor candidate to challenge

§14-202.5, for he is objecting to a state ban on

accessing a website that he had no legal right to

access even absent the law. Nor can he take refuge in

the statute’s alleged vagueness, for he used a social

networking site to which the statute unquestionably

applies. Petitioner also failed to introduce evidence

needed to assess his claim that the statute’s alleged

unconstitutional applications are substantial in

comparison to its legitimate sweep.

In the end, petitioner’s complaint boils down to a

vociferous insistence that the North Carolina

Supreme Court did not properly apply the Ward test.

That error-correction claim fails on its own terms.

Petitioner suggests a series of “less restrictive”

alternatives, but none would protect children until it

is too late—thereby defeating the very purpose of the

statute. He also relies on faulty crime statistics that

fail to support his counter-intuitive contention that

convicted sex offenders pose no more threat to

children than anyone else. Lastly, petitioner’s claim

that he lacks ample alternative channels of

communication rests on an interpretation of that test

that would defeat virtually any challenged statute.

And it ignores the countless websites that §14-202.5

leaves open to registered sex offenders. Certiorari

should be denied.

|

STATEMENT

A. Statutory Background.

In 1995, the North Carolina Legislature enacted

North Carolina’s “Sex Offender Registration

Program” in an effort to protect minors from sexual

predators. See N.C. Sess. Laws 1995-545; N.C. Gen.

Stat. §14-208.5 et seq. The legislation detailed its

purpose, specifically noting “that sex offenders often

pose a high risk of engaging in sex offenses even

after being released from incarceration or

commitment” and that “persons who commit certain

other types of offenses against minors, such as

kidnapping, pose significant and unacceptable

threats to the public safety and welfare or the

children in this State.” N.C. Gen. Stat. §14-208.5.

The legislation stated that its purpose was “to assist

law enforcement agencies’ efforts to protect

communities” from such offenses. Jd.

North Carolina’s sex offender registry applies to

sex offenders who have committed crimes against

minors and those who have committed “sexually

violent offenses.” The registerable offenses in the

latter category that could pertain to either minor or

adult victims are:

e First degree rape;

e Second degree rape;

e First degree forcible sexual offense (engaging in

a sexual act against another person by force and

there are additional aggravating factors);

e Second degree forcible sexual offense (engaging

in a sexual act with another person by force or with a

person who is mentally disabled, mentally

incapacitated, or physically helpless);

e Sexual battery (engaging in sexual contact with

another person by force or with a person who is

mentally disabled, mentally incapacitated, or

physically helpless);

e Subjecting or maintaining a person for sexual

servitude;

e Incest between near relatives; and

¢ Promoting the prostitution of or patronizing a

prostitute who is a minor or mentally disabled

person.

See id. §§14-208.6(4)(a), (5).1 A registered sex

offender may petition to be removed from the

registry after 10 years of registration, but unless his

' See also N.C. Department of Justice, Law Enforcement

Liaison Section, The North Carolina Sex Offender &

Public Protection Registration Programs 4-5 (Sept. 2014).

Two of the registrable offenses relate to sexual activity by

school personnel with a “student” of a primary or

secondary school. The vast majority of such students are,

of course, minors.

petition is granted the sex offender must remain on

the registry for 30 years. Id. §14-208.6A.

In 2008, in an additional effort to confront the

problem of sexual predators, the General Assembly

enacted the statute at issue here—N.C. Gen. Stat.

§14-202.5 (“Ban use of commercial social networking

Web sites by sex offenders”). This legislation forbids

registered sex offenders from accessing certain

“commercial social networking Web sites” that

minors frequent. See id. Through §14-202.5, North

Carolina sought to address the menace of registered

sex offenders compensating for lack of direct physical

access by seeking out new, unsuspecting victims via

“cyberspace.” Through this modern method, a sex

offender can remain invisible on a social networking

site while gaining intimate and detailed information

about children who use the site. Offenders use that

information to prey on those children.

To convict a registered sex offender for violating

§14-202.5, the State must show that the offender

accessed a commercial social networking website

where the offender knows the site permits minor

children to become members or to create personal

web pages on the site. Jd. §14-202.5(a). The State

further must establish that the site possesses the

following attributes:

— It is a private, commercial, revenue-

producing site. Id. §14-202.5(b)(1).

— It is a “social networking site” that allows

for the social introduction between people.

Id. §14-202.5(b)(2).

— It is a site that allows users to create

pages or profiles that are capable of

containing the user’s name or nickname,

photographs, other personal information, and

links to other personal web pages on the site

belonging to friends or associates. Id. §14-

202.5(b)(3).

— It is a site that provides its users at least

one mechanism to communicate with other

users, such as a message board, chat room,

electronic mail, or instant messenger. Id.

§14-202.5(b)(4).

Access to any websites that do not meet all of

these criteria is not restricted under the statute. See

id. §14-202.5(b). In addition, unlike the “social media

bans” at issue in the federal cases relied upon by

petitioner, North Carolina’s statute exempts from its

reach any site that “[pjrovides only one of the

following discrete services: photo-sharing, electronic

mail, instant messenger, or chat room or message

board platform.” Jd. §14-202.5(c)(1). Nor does the

statute apply to a site that “[hlas as its primary

purpose the facilitation of commercial transactions

involving goods or services between its members or

visitors.” Id. §14-202.5(c)(2).

B. Facts.

On May 20, 2002, a Grand Jury in Cabarrus

County, North Carolina indicted petitioner, then 21

years old, on two counts of statutory rape of a 13-

year-old child. See Cabarrus County File Nos. 02

CRS 8475 and 02 CRS 8476. Pursuant to a plea

bargain, petitioner entered a plea of guilty to taking

indecent liberties with a child. See Cabarrus County

Super. Ct., Judgment, No. 02CRS008475 (Sept. 16,

2002). Upon petitioner’s conviction, he was ordered

to register as a sex offender. (R. 72)?

In April 2010, Corporal Brian Schnee, a

supervisor in the juvenile investigation division of

the Durham, North Carolina Police Department, was

working to identify registered sex offenders who

were illegally accessing commercial _ social

networking websites. (Tr. 132) While perusing

Facebook, Officer Schnee found a user profile page

that (based on the profile photo) he believed belonged

to petitioner—whom Schnee had previously

determined was a registered sex offender living in

Durham. (Tr. 132-34) On the Facebook page,

2 Citations to “R. __” refer to the printed Record on

Appeal, filed in the North Carolina Court of Appeals.

3 Citations to “Tr. _” refer to the transcript of the trial

proceedings in Durham County, North Carolina Superior

Court.

petitioner was using the fictitious name “J.r.

Gerrard” instead of his own name. (Tr. 133-34; R. 77)

Petitioner had posted a message on Facebook on

April 27, 2010, praising God in the wake of dismissal

of a traffic citation. (Tr. 134-35) Officer Schnee went

to the Durham County Clerk of Court’s office and

obtained a certified copy of the citation and dismissal

dated April 27, 2010. (Tr. 135-36) Based on this and

additional information confirming that “J.r. Gerrard”

was in fact petitioner, Officer Schnee obtained a

search warrant for petitioner’s residence. (Tr. 142)

During the search, Officer Schnee found and

seized a picture of petitioner which was the same

picture the officer had seen on the Facebook page; as

well as other items corroborating petitioner’s identity

as the person who had opened and used a Facebook

account. (Tr. 152, 153, 157) Officer Schnee also

seized a notice of “Changes to the North Carolina

Sex Offender Registration Laws,” which petitioner

had signed, describing the websites that §14-202.5

prohibited him from accessing. (Tr. 155-56)

C. Lower Court Proceedings.

1. Petitioner was indicted for violating N.C. Gen.

Stat. §14-202.5. At trial, he moved to dismiss on the

ground that the statute violated his First

Amendment right to free speech. The trial court

denied the motion (Pet. App. 54a-65a), and the North

Carolina Court of Appeals denied his request for

10

interlocutory review. Following a trial, a jury

convicted petitioner.

2. Petitioner appealed to the North Carolina

Court of Appeals, which reversed the conviction. (Id.

35a-53a) The Court of Appeals ruled that §14-202.5

is a content-neutral speech regulation subject to

intermediate scrutiny. And although it found “that

the State has a significant interest in protecting

minors from predatory behavior by sex offenders on

the internet” (id. 46a), the court concluded that the

statute is not narrowly tailored because it applies to

sex offenders whose offenses involved adults and

therefore might not be “a current threat to minors”

(id. 48a).

The Court of Appeals also ruled that §14-202.5 is

unconstitutionally vague. Disregarding limiting

constructions proposed by the State, the court found

that “the statute could be interpreted to ban

registered sex offenders from accessing sites such as

Google.com and Amazon.com.” (Ud. 51a) In its

vagueness analysis, the court did not address

whether petitioner’s conduct—accessing Facebook—

was clearly proscribed.

3. The North Carolina Supreme Court reversed,

holding that §14-202.5 does not violate the First

Amendment or the Due Process Clause. (/d. 1a-27a)

The court stated that, although social networking

websites provide both a forum for gathering

11

information and a means of communication, the

essential purpose of §14-202.5 is to limit sex

offenders’ conduct, namely, “access[ing] certain

carefully-defined Web sites.” (Jd. 9a) After finding

that the statute is content-neutral, the court

concluded that it should be assessed under the four-

part intermediate-scrutiny test set out in United

States v. O’Brien, 391 U.S. 367 (1968). (Ud. 12a)

The court noted that the parties agreed that the

statute satisfied the first two factors of the O’Brien

test: whether the statute is within the government’s

constitutional powers and whether it furthers a

substantial government interest. The court next

ruled that the statute satisfies the third O’Brien

factor, which asks whether the government interest

is unrelated to the suppression of free expression.

The court found that the statute’s purpose is to

“protect[ ] children from convicted sex offenders who

could harvest information to facilitate contact with

potential victims,” an interest “unrelated to the

suppression of free speech.” (Jd. 13a-14a)

The court then focused on the fourth O’Brien

factor, which the court found to be the same as the

test set forth in Ward v. Rock Against Racism, 491

U.S. 781 (1989): whether the statute is narrowly

tailored and leaves open “ample alternative channels

for communication.” (Pet. 42a) Applying that test,

the North Carolina Supreme Court concluded that

§14-202.5 is narrowly tailored. The court observed

12

that the statute contains specific exceptions for

websites that provide discrete e-mail, chat room,

photo-sharing, and instant messaging services. And

it found that, even assuming petitioner’s broad

reading of the statute, it “leave[s] open ample

alternative channels for communication.” (/d. 16a

(quoting Ward, 491 U.S. at 791)). The court pointed

to the types of sites expressly excluded by the statute

and the myriad other sites that do not fall within its

terms. The court further noted that non-web-based

methods of communication such as text messaging,

FaceTime, and electronic mail remain open to

petitioner.

After distinguishing the statutes struck down in

a few other jurisdictions (id. 18a-19a), the North

Carolina Supreme Court rejected petitioner’s as-

applied, overbreadth, and vagueness challenges. As

to overbreadth, the court found that “the statute is

drafted carefully to limit its reach by establishing

four criteria that must be met before access to a

commercial social networking Web site is prohibited”

—factors which “ensure that registered sex offenders

are prohibited from accessing only those Web sites

where they could actually gather information about

minors to target.” (Id. 25a) As to vagueness, the

court held that such a challenge “cannot be raised by

a defendant”’—such as petitioner—“whose conduct

falls squarely within the scope of the statute.” (Ud.

27a)

13

REASONS FOR DENYING THE PETITION

I. THE NORTH CAROLINA SUPREME

COURT'S DECISION DOES NOT

CONFLICT WITH DECISIONS OF OTHER

APPELLATE COURTS.

Petitioner’s contention that the North Carolina

Supreme Court’s decision conflicts with various

federal court decisions falls short on multiple

grounds. Only three of the cited decisions actually

involved challenges to social-networking media

bans—and only one of those was issued by an

appellate court. All are readily distinguishable.

Petitioner cites several other decisions as

purportedly conflicting with some of the North

Carolina Supreme Court’s reasoning. But even if

such a conflict were worthy of this Court’s review—

and it is not—the particular reasoning in question

did not affect the outcome of this case. Still other

decisions offered by petitioner involved statutes and

orders even farther afield from this case. No genuine

conflict among the appellate courts exists.

A. North Carolina’s statute differs from

the state social networking bans other

courts have addressed.

1. Only one appellate court has struck down a

“social media” ban, and that case addressed a state

law that differed from §14-202.5 in significant

ways—-ways the court itself recognized may prove

14

decisive. In Doe v. Prosecutor, Marion County, 705

F.3d 694 (7% Cir. 2013), the Seventh Circuit

invalidated an Indiana law that banned sex

offenders’ use of social networking sites. See Ind.

Code §35-42-4-12. The Indiana law, however, was

broader in scope than North Carolina’s law and

narrower in purpose.

Indiana’s law solely “target{ed] the evil of

improper communications with minors.” Marion

County, 705 F.3d at 695. The State therefore agreed

that a sex offender’s use of social media is not a

problem the statute seeks to address “as long as he

does not improperly communicate with minors.” /d.

at 699. The purpose of North Carolina’s statute is

quite different. It does not merely regulate the actual

contact a sex offender might ultimately make with a

victim. Rather, North Carolina recognized the

additional danger of sex offenders’ increasing use of

social networking sites to troll for victims, which

requires time spent on certain fertile sites before any

actual contact is ever made.‘ It is this protective

purpose that North Carolina’s statute seeks to

achieve.

The Seventh Circuit in Marion County

recognized the importance of the different statutory

* See, e.g., Online Predators/Internet Predators,

http://www.minormonitor.com/resource/online-predators/

(March 14, 2012) (discussing predators’ use of online tools

to target victims) (last visited June 29, 2016).

15

objectives, and expressly reserved whether the

outcome might be different if the state law were

enacted to serve the broader purpose served by

North Carolina’s law. Thus, the court stated:

[W]e do not foreclose the possibility that

keeping certain sex offenders off social

networks advances the state’s interest in ways

distinct from the existing justifications. For

example, perpetrators may take time to seek

out minors they will later solicit. This initial

step requires time spent on social networking

websites before the solicitation occurs.

Id. at 701. And when a State enacts a law designed

to serve that objective, the court will have to revisit

the constitutional issue:

In the future, the state may argue that

prohibiting the use of social networking allows

law enforcement to swoop in and arrest

perpetrators before they have the opportunity

to send actual solicitation. This argument

remains speculative.

Id. In short, said the court, its analysis was limited

to che rationale and legislation before it, and its

decision “should not be read to limit the legislature’s

ability to craft constitutional solutions to this

modern-day challenge.” Jd. Petitioner disregards

that admonition, and the Seventh Circuit’s express

reservation, when he nonetheless insists that the

16

court’s decision conflicts with the North Carolina

Supreme Court’s decision.

On top of that, the scope of the statutes at issue

in the two cases differed. In keeping with Indiana’s

express purpose of regulating the actua! contact a

sex offender might have with a minor, its “social

media ban” was broadly written to cover virtually

every Internet site imaginable, and amounted to a

near-complete Internet ban. See id. at 698; Ind. Code

§35-42-4-12 (prohibiting use of “a social networking

website or an instant messaging or chat room

program”). By contrast, as discussed, North

Carolina’s statute focuses only on sites that allow for

posting of personal identifying information and allow

the users to link to others’ personal pages. It

expressly exempts sites that provide only single,

discrete communications features, which would not

allow the user to invisibly use them or invisibly

ferret out vast personal information from other

users. See N.C. Gen. Stat. §14-202.5(c)(1). The

purported conflict between the North Carolina

Supreme Court decision and Marion County is

illusory.

2. The other two decisions striking down social-

media bans are Doe v. Jindal, 853 F. Supp. 2d 596,

607 (M.D. La. 2012), and Doe v. Nebraska, 898 F.

Supp. 2d 1086, 1112 (D. Neb. 2012). As an initial

matter, of course, a conflict between an appellate

court and a federal! district court is not the sort of the

17

conflict that warrants a grant of certiorari. See

Stephen M. Shapiro et al., Supreme Court Practice

§4.8, at 257 (10% ed. 2013). In any event, the state

statutes at issue in those two cases, like the Indiana

statute reviewed in Marion County, were far broader

in scope than §14-202.5.

Thus, the Louisiana statute at issue in Jindal

prohibited use of “social networking websites, chat

rooms, and peer-to-peer networks.” La. Rev. Stat.

Ann. §14:91.5. The Nebraska statute at issue in

Nebraska prohibited use of “a social networking

website, instant messaging, or chat room service.”

Neb. Rev. Stat. §28-322.05. Neither contained the

broad exception set forth in N.C. Gen. Stat. §14-

202.5(c). The effect of those statutes was to foreclose

the Internet as a medium of speech for sex offenders.

See Jindal, 853 F. Supp. 2d at 607; Nebraska, 898 F.

Supp. 2d at 1117. That is neither the purpose nor the

effect of North Carolina’s legislation.

Moreover, as noted by the North Carolina

Supreme Court, after the district court declared

Louisiana’s statute unconstitutional in Jindal, the

Louisiana legislature amended its statute, making it

similar to North Carolina’s statute. (Pet. App. 19a

(citing La. Rev. Stat. Ann. §14:91.5)). The amended

Louisiana statute changed the name from “social

media” to “social networking,” added that the use

must be “intentional,” removed “chat rooms and

peer-to-peer networks,” and excepted many sites that

18

were previously banned, such as “websites that only

offer photo sharing, email, or instant messaging.”

Id.) The new version of Louisiana’s statute has not

come under constitutional attack, and already has

been viewed as “likely narrowly tailored to the

significant government interest of protecting

children from sex offenders on the Internet.”

Comment: Why Don’t You Take a Seat Away from

that Computer?: Why Louisiana Revised Statute

14:91.2 Is Unconstitutional, 73 La. L. Rev. 883, 883-

84 (2013) (analyzing the prior version of the

Louisiana statute, while noting that the amended

version does not suffer from the same defects). North

Carolina’s statute, as written, already is narrowed in

all of those ways.

B. The other lower court decisions upon

which petitioner relies do not remotely

create a conflict worthy of this Court’s

review.

Lacking a genuine and direct conflict, petitioner

—perhaps believing in quantity over quality—points

to a variety of appellate decisions not involving

social-media statutes which supposedly conflict in

some way with the North Carolina Supreme Court’s

reasoning. None creates a conflict meriting this

Court’s review.

First, petitioner points to cases holding that a

law limiting use of Internet sites should be analyzed

19

as a speech regulation, not (as the North Carolina

Supreme Court ruled) as a regulation of conduct.

(Pet. 28) But as discussed further in §II, infra, the

North Carolina Supreme Court assessed §14-202.5

under the Ward test—the precise test used in the

cases that supposedly conflict with its decision and

the precise test petitioner would apply. See Doe v.

Harris, 772 F.3d 563, 576-77 (9* Cir. 2014) (applying

Ward); Doe v. City of Albuquerque, 667 F.3d 1111,

1131-35 (10% Cir. 2012) (same); Marion County, 705

F.3d at 698-99 (same).

Petitioner next relies on several decisions

striking down “measures requiring registrants to

provide their ‘internet identifiers’ to the

government.” (Pet. 30) But these decisions were

based upon the principle of anonymous speech, and

turned on the fact that the statutes at issue

effectively gave law enforcement unfettered

discretion to disclose the identifying information to

the public, thus chilling the registrants’ right to

speak anonymously on the entire Internet. As

petitioner concedes, the other federal court of

appeals to address such a law upheld it, because this

concern was absent. (/d. n.11 (citing Doe v. Shurtleff,

628 F.3d 1217 (10% Cir. 2010) (upholding “Internet

identifier” regulation that limited law enforcement’s

sharing of the identifiers to other law enforcement

agencies and did not allow for disclosure to the

public at large)).

20

Finally, petitioner relies on cases rejecting

conditions of supervised release that barred

convicted sex offenders from accessing the entire

Internet and, in two of the cases, even using a

computer. (Pet. 31-32) Suffice to say, a sweeping ban

on access to the entire Internet—let alone a ban on

using a computer—is far less tailored and far harder

to justify than the more limited ban imposed by §14-

202.5.

ke eae

The only lesson that can be drawn from the

assortment of cases offered by petitioner is that

states and judges are struggling with the best way of

addressing the challenge of sexual offenders’

recidivism and the threat they pose to children. The

statutes, regulations, and release conditions they

adopt will vary from state to state and judge to

judge; some will be upheld and some will be struck

down. There may even be some occasional tension

between rulings. But for the moment, the courts are

all applying settled First Amendment jurisprudence

to the specific laws and conditions before them,

reaching results that can be easily reconciled. There

is no pressing need for this Court’s intervention.

21

Il. THE NORTH CAROLINA SUPREME

COURTS APPLICATION OF INTER-

MEDIATE SCRUTINY TO N.C. GEN. STAT.

§14-202.5 DOES NOT MERIT THIS

COURT'S REVIEW.

Once all the smoke has cleared, the petition can

be seen for what it really is: a disagreement with a

state court’s application of well-settled law to a little-

copied statute in a case with an undeveloped record

and in which many of the alleged problems with the

statute are not present.

1. The first section of the petition (at 13-18) is

devoted to contesting the North Carolina Supreme

Court’s conclusion that §14-202.5 regulates conduct,

not speech. Whether the court got that right is an

interesting question—but it has absolutely no

bearing on the outcome of the case. After ruling that

§14-202.5 regulates conduct, the North Carolina

Supreme went on to apply the O’Brien test to assess

its constitutionality. And as the court recognized,

this Court stated in Ward “that the O’Brien test ‘in

the last analysis is little, if any, different from the

standard applied to time, place, or manner

restrictions.” 491 U.S. at 798 (quoting Clark v.

Community for Creative Non- Violence, 468 U.S. 288,

296 (1984)).

Consistent with that understanding, the North

Carolina Supreme Court expressly found that the

22

fourth O’Brien factor embodies the Ward test for

assessing content-neutral statutes, which asks

whether the law is “narrowly tailored to achieve a

significant governmental interest” and “leave|[s] open

ample alternative channels for communication of the

information.” (Pet. 42a (quoting Ward, 491 U.S. at

791)). That is the very test petitioner would apply to

§14-202.5 (see id. 18), for he does not argue that §14-

202.5 is content-based and subject to strict scrutiny

(see id. 18 n.4).5

To be sure, petitioner stridently disagrees with

the North Carolina Supreme Court’s application of

Ward. But his fulminations cannot change the fact

that this is all that is at issue here. See Supreme

Court Practice, supra, §6.37(i)(3), at 507 (“The Court

will not ordinarily entertain cases involving” errors

“consist[ing] of the misapplication of a properly

stated rule of law.”).

2. There are additional] prudential reasons why

this case does not merit further review. Petitioner

asserts an as-applied challenge to §14-202.5, yet that

challenge suffers from flaws specific to his case.

Petitioner was convicted for creating and accessing a

Facebook page. He has never disputed that

Facebook is clearly covered by the statute. Any

* Petitioner later suggests (at 34) that §14-202.5

discriminates based on the identity of the speaker, but

when setting out his merits argument he relies solely on

the Ward test. (See Pet. 18-26)

23

uncertainty about the scope of the statute cannot

excuse his behavior.

More importantly, Facebook expressly bars

convicted sex offenders from its site. Its terms of

service expressly declare that: “You will not use

Facebook if you are a convicted sex offender.”

Facebook.com, Terms of Service, Statement of Rights

and Responsibilities, Registration and Account, item

6, www.facebook.com/legal/terms. Facebook’s ban on

sex offenders is no fortuity or technicality. The

Attorneys General of 49 states investigated Facebook

and MySpace out of concern that sexual predators

were using those sites to stalk children. The

investigations led to agreements between the

Attorneys General and the two social networking

sites under which the sites agreed to take a series of

steps to better protect children from predators.®

As applied in this case, therefore, §14-202.5 did

not bar petitioner from accessing any website he was

otherwise permitted to access. He was barred from

Facebook regardless. Even if the statute were not on

®° See Joint Statement on Key Principles of Social

Networking Sites Safety (Jan. 14, 2008) (MySpace),

available at http://www.ncdoj.gov/getattachment/78eac

Sbe-5ee9-4ffe-b2fb-1e76da3a4574/MySpace-Agreement-

Joint-Statement-on-Key-Princip.aspx; Joint Statement on

Key Principles of Social Networking Sites Safety (May 8,

2008) (Facebook), available at http://www.nj.gov

/oag/newsreleases08/Facebook-Joint-Statement.pdf.

24

the books, petitioner had no right to take advantage

of what his amici (at 7) insist is a “uniquely effective

form of communication.” Put another way, when it

comes to Facebook, petitioner cannot demonstrate

“the existence of a traditional right of access.”

Members of City Council of Los Angeles v. Taxpayers

for Vincent, 466 U.S. 789, 814 (1984).

Petitioner insists that Facebook’s own ban on

convicted sex offenders is of no moment because §14-

202.5 does not “impose[] criminal punishment for

violating private agreements with website

operators.” (Pet. 25 n.7) That misses the point. As

applied in his case, §14-202.5 barred petitioner from

accessing a website he had no legal right to access.

Cf. Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)

(holding, in lawsuit brought by person threatened

with arrest for attempting to distribute handbills at

a shopping mall in violation of the mall’s policy, that

the policy did not violate the First Amendment). It

surely is a strange First Amendment claim to say

that the State is suppressing speech the speaker had

no independent lawful right to make. At the very

least, petitioner is a poor representative of the class

of individuals supposedly burdened by §14-202.5.

3. This flaw in petitioner’s case affects his facial

challenge as well. In United States v. Stevens, 559

U.S. 460 (2010), the Court explained that “[t]o

succeed in a” facial challenge “[i]Jn the First

Amendment context,” a claimant must show

25

overbreadth—+.e., that “a substantial number of [the

statute’s] applications are unconstitutional, judged

in relation to the statute’s plainly legitimate sweep.”

Id. at 472-73 (internal quotation marks omitted).?

Social networking sites that independently bar

convicted sex offenders complicate making that

assessment here.

The person challenging a statute as overbroad

“bears the burden of demonstrating, from the text of

[the law] and from actual fact, that substantial

overbreadth exists.” Virginia v. Hicks, 539 U.S. 113,

122 (2003) (internal quotation marks omitted). Yet

petitioner has provided no evidence regarding what

percentage of the social networking “market” is

already out of bounds to convicted sex offenders.

Petitioner also suggests (at 20) that §14-202.5 is

overbroad because it applies to sex offenders who

committed crimes against adults, not minors—but

here too failed to provide any evidence regarding the

proportion of registered offenders falling within that

category. Nor has petitioner documented what

percentage of registered sex offenders are on parole,

probation, or supervised release, a category he

recognizes are “entitled to less robust constitutional!

protections.” (Pet. 27)

’ Petitioner asserts that his “facial challenge should

succeed without resort to the overbreadth doctrine[ |”

(Pet. 27 n.9), but does not reconcile that view with

Stevens.

26

All told, this case is an exceedingly poor vehicle

through which to address the constitutionality of

§14-202.5, even if the Court thought the issue might

one day warrant its consideration.

Ill, THE NORTH CAROLINA SUPREME

COURT'S DECISION WAS CORRECT.

The North Carolina Supreme correctly concluded

that §14-202.5 is “narrowly tailored to achieve a

significant governmental interest” and “leave[s] open

ample alternative channels for communication of the

information.” (Pet. App. 42a (quoting Ward, 491 U.S.

at 791)). Petitioner’s arguments to the contrary (Pet.

18-26) distort the court’s reasoning and the Ward

test, and ignore the animating purpose behind the

statute.

A. Section 14-202.5 is narrowly tailored.

1. Ward held that a content-neutral statute that

affects speech need not be the “least restrictive or

least intrusive means” of achieving the government’s

interest. 491 U.S. at 798. “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.” Id. at 800. To faithfully apply that

narrow-tailoring standard, it is necessary to fully

27

appreciate the state interest the challenged statute

is serving.

As discussed in above, §14-202.5 reflects the

North Carolina Legislature’s recognition that a mere

ban on on-line communication between a registered

sex offender and minors does not suffice. Rather, as

one Web-based child protection tool explains, sex

offenders

use information made available on social

networking sites to gather information such

as where the child lives, his day to day

activities and routines, who he hangs out

with, etc. Through the social networking page,

the predator is able to gather enough

information to commit heinous crimes against

children.

Online Predators/Internet Predators, http://

www.minormonitor.com/resource/online-predators/

(last visited June 29, 2016).

Further,

[p]redators who choose their victims through

social networking are often hard to identify

once the crime takes place. This is especially

true if the predator never actually contacted

the victim using the social networking site

but instead just used it to gain a wealth of

information that made the victim an easy

target.

28

Id. Section 14-202.5 is carefully tailored to address

precisely those problems.

2. Petitioner is therefore wrong when he posits

several other measures that purportedly “could serve

[the State’s] interests just as well.” (Pet. 18 (quoting

McCullen v. Coakley, 134 S. Ct. 2518, 2537 (2014)).

In relying on those other measures, petitioner

disregards the statute’s purpose and effectively seeks

to hold the legislation to the “least restrictive means”

test.

For instance, petitioner suggests that the remedy

is charging a defendant with the sex crimes that

result from the contact. (Pet. 21) At that point,

however, the damage is already done, if it is ever

detected. This alternative does not adequately serve

the protection purpose underlying the statute. When

the danger to society, such as sexual predation, is

both great and difficult to detect, preventive

measures may serve the State’s compelling interests.

See, e.g., Burson v. Freeman, 504 U.S. 191, 207-08

(1992) (upholding ban on campaigning within 100

feet of a polling place); Renton v. Playtime Theatres,

475 U.S. 41 (1986) (upholding ordinance prohibiting

adult theaters from locating within 1000 feet of

residential areas or schools); Frisby v. Schultz, 487

U.S. 474, 476, 481-88 (1988) (upholding town

ordinance banning picketing “before or about” any

residence); Hill v. Colorado, 530 U.S. 703, 707, 725-

30 (2000) (upholding statute prohibiting certain

29

speech-related conduct within 100 _ feet of the

entrance to any healthcare facility).

That is why petitioner misses the point when he

says (at 12) that he “was convicted for saying “Thank

you Jesus’ on an internet site.” He was not convicted

for saying those specific words; he was convicted for

accessing a social networking site that enables

sexual predators to “gather information such as

where [a] child lives, his day to day activities and

routines, who he hangs out with, etc.”

Petitioner fares no better in suggesting that the

State require social networks to “ensure that minors

obtain adult permission before establishing accounts

and afford parents ongoing access.” (Pet. 3, 21) Even

assuming such a law would be constitutional, but see

Brown v. Entertainment Merchants Ass’n, 131 S. Ct.

2729 (2011), any marginal reduction in the number

of children on those sites would hardly stop

predators from gathering information about the

many children who remain.

3. Petitioner nonetheless insists that the statute

sweeps too broadly, covering too many websites and

too many offenders. The former complaint reprises in

a different guise the due process argument he no

longer directly makes. But North Carolina’s statute

excludes from its purview all sites other than those

through which registered sex offenders can access

information about minors by viewing a personal page

30

containing identifying information about the creator

of the page, and which can link to other such pages

on the site.®

As the Attorney General explained to the courts

below, it therefore does not encompass cites such as

Google.com, Amazon.com, or Foodnetwork.com. See

New Brief for the State (Appellant) at 35-36. Each of

those sites lacks features required by §14-202.5, such

as allowing a minor to create a webpage or having

webpages that have links to friends that can be

accessed by visitors. Similarly, nytimes.com is not

covered by the statute because the site does not

allow for creation of detailed personal user pages

that link to other users’ personal pages while also

* The function of linking to other users’ pages is the

hallmark of a social networking site. To meet the

definition of “social networking site” under §14-202.5, the

site must allow the user to include all of the information

listed in subsection (b)(3), including the ability to link to

other users’ pages. See §14-202.5(b)(3) (using conjunctive

“and”). The site must also provide at least one of the

communications options listed under subsection (b)(4).

See id. §14-202.5(b)(4) (using disjunctive “or”). This

reading comports with basic principles of statutory

construction. See, eg., Frisby v. Schultz, 487 U.S. 474, 483

(1988)(statutes to be narrowly read); Larry M. Eig,

Statutory Interpretation: General Principles and Recent

Trends 9 (Congressional Research Service 2011), (use of

“and” vs. “or”), available at http://fas.org/sgp/crs/misc/97-

589.pdf.

31

providing a message board, chat room, email, or

instant messaging platform.

In addition, “as a matter of natural meaning, an

educated user of English would not describe” sites

such as nytimes.com or Foodnetwork.com as “social

networking sites.” See Bond v. United States, 134 S.

Ct. 2077, 2090 (2014) (beginning interpretation of

statutory term by looking at the “natural meaning”

of the term). And, of course, statutes should be

construed “to avoid constitutional difficulties.”

Frisby, 487 U.S. at 482. Moreover, the remedy in the

unlikely event some offender were charged with

accessing Foodnetwork.com would be to hold the

State to its burden of proving the site meets the

definition. See United States v. Williams, 553 U.S.

285, 305-06 (2008) (noting that in “close cases,” the

remedy lies not in facially invalidating an allegedly

vague statute, but in the requirement of proof

beyond a reasonable doubt).

4. Petitioner also faults §14-202.5 for reaching all

registered sex offenders, including those who might

not have sexually assaulted minors. But the

inclusion of select offenses that could have been

committed against an adult strongly furthers the

purpose of protecting minors.

Research shows a high cross-over rate for

types of sexual offenses. Specifically, studies show

that adult-victim rapists “often sexually assault

32

children,” with the majority of studies finding “rates

in the range of 50 to 60 percent.” Sex Offender

Management Assessment and Planning Initiative

(hereinafter “SOMAPI”] 61-62 (Washington, DC:

U.S. Department of Justice, Office of Justice

Programs, Office of Sex Offender Sentencing,

Monitoring, Apprehending, Registering, and

Tracking, October 2014, NCJ 247059), available at

http://smart.gov/SOMAPI/pdfs/SOMAPI_Full%20Rep

ort.pdf. Studies also show that “incest offenders

often sexually assault children both within and

outside their family,” and that “64-66 percent of

incest offenders report sexually assaulting children

who they were not related to.” Jd. These

“fijndiscriminate offenders, also known as mixed

offenders, report sexually abusing both adults and

children equivalently.” Jd. at 65. “Taken together,

crossover findings suggest that traditional typologies

based on victim type may not be useful to allocate

resources, evaluate risk, or devise individualized

treatment interventions.” /d. at 63. Given this

research, it would be foolish to assume that a sex

offender bold enough to assault an adult does not

present a danger to a 16-year-old.

Petitioner is on even weaker ground when he

suggests that registered sex offenders pose no

greater risk than members of the general public.

(Pet. 23 & n.6) Not surprisingly, no lower court in

this case made a finding of fact with respect to that

33

unsupported and astonishingly counter-intuitive

claim. And the claim merits little credence, in large

part because recidivism rates do not nearly reflect

the actual rate of re-offense by sex offenders.

Because of the shame and degradation peculiar

to sex crimes, sexual offenses are grossly under-

reported crimes. See National Institute of Justice,

“Reporting of Sexual Violence Incidents.”%

Researchers on recidivism “widely agree that

observed recidivism rates are underestimates for the

true reoffense rates of sex offenders” due to the low

frequency with which sex crimes are reported and

the large number of sex crimes that are unsolved or

not prosecuted. See SOMAPI at 89-91.

Under conditions of guaranteed confidentiality,

for instance, one study showed that only 3.3 percent

of actual hands-on sex offenses, such as rape or child

molestation, resulted in arrest. Jd. at 91. Another

study showed that only 5 percent of rapes and child

sexual assaults self-reported by offenders during

treatment actually were reflected in official records.

Id. When polygraphs were used, the number of

victims reported by incarcerated sex offenders rose

* The report is available at http://www.nij.gov/topics/

crime/rape-sexual-violence/pages/rape-notification.aspx.

The reports cites C.M. Rennison, Rape and Sexual

Assault: Reporting to Police and Medical Attention, 1992-

2000 (Washington, DC: U.S. Department of Justice,

Bureau of Justice Statistics, August 2002, NCJ 194530).

34

from the average of 2 reported in official records to

an average of 18. Jd. at 61. The average number of

offenses to which sex offenders admitted to

committing rose from 12 to 137. Id. And although

petitioner correctly reports that sex offenders had a

lower overall re-arrest rate than non-sex offenders,

their sex-crime arrest rate was four times higher

than the rate for non-sex offenders. Jd. at 93.

This Court was therefore on solid ground when it

recognized that “when convicted sex offenders

reenter society, they are much more likely than any

other type of offender to be re-arrested for a new

rape or sex assault.” Conn. Dep't of Pub. Safety, 538

U.S. at 4 (internal quotation marks omitted). And

certainly far more likely than a member of the

general public.

5. Having criticized the statute for its breadth,

petitioner turns around and faults the statute for its

exclusion of websites that provide solely a chat room,

message board platform, email, photo-sharing, or

instant messenger. (Pet. 23-24) Yet inclusion of sites

with only one such feature would effectively have

banned most sites on the Web, an outcome the

legislature carefully tried to avoid. Moreover,

discrete chat room or messaging services do not

contain the transparent level of personal information

and photographs available on social networking

sites. Nor can users of a chat room or messaging

service remain invisible to others participating in the

35

feature. North Carolina thus specifically exempted

sites whose inclusion would not significantly further

the legislation’s purpose but would render the

statute too far-reaching—just as one would want a

state legislature to do.

B. Section 14-202.5 leaves ample

alternative channels of communication.

With its narrow definition of “social networking

sites” and exemptions for sites that do not

significantly further its purpose, North Carolina’s

legislation leaves open ample “alternative channels

for communication”—and not just generally, but on

the Internet.

A sex offender may use any of the sites that do

not fall under the definition of “commercial social

networking sites” that allow members under the age

of 18. This includes social networking sites for adults

only, social networking sites with limited features,

non-commercial social networking sites, and

government sites. A sex offender can create his own

webpage, blogs, and podcasts, and visit those of

others. He may take out an advertisement on any

site on the Internet, use a mail exploder to send his

messages, or have a friend post a message on

Facebook and directly attribute the message to him.

He can navigate to and post on popular sites like

Salon.com, Slate.com, and Huffington post.com. He

can go to commercial sites like eBay, Yelp, and

36

Amazon.com. North Carolina’s statute leaves open

myriad alternative means for Internet speech.

Petitioner insists, however, that social

networking sites are unique and that “it is

essentially definitional that equivalent ‘alternatives’

will not exist.” (Pet. 25) That cannot be the test. If an

alternative channel of communication had to be a

perfect substitute, few if any time, place, or manner

restrictions would be upheld. All litigants

challenging restrictions on a particular channel of

communication prefer that channel to others based

on its particular features. But the First Amendment

allows the government to restrict access to particular

means of communication where ample alternative

ways to communicate remain.

While no single “alternative channel” may equal

Facebook’s special appeal to those who use it, the

vast array of different sites that remain available to

sex offenders—but on which minors cannot be easily

and invisibly identified—provides ample alternative

channels of communication to Facebook and its

kindred. !°

'° Both petitioner and his amici fault the North Carolina

Supreme Court for providing some specific examples of

alternative websites still available to registered sex

offenders. (See Pet. 24 (citing Pet. App. 17a-18a); Law

Professors Amicus Br. 10) They fail to recognize that the

court was addressing petitioner’s specific examples of

sites he imagined to be off-limits. The court was

37

The principal case upon which petitioner’s amici

rely, City of Ladue v. Gilleo, 512 U.S. 43 (1994), is far

afield from this case. (See Law Professors Amicus Br.

9-12) City of Ladue involved a ban on residential

signs, a means of communication this Court found to

be “venerable” and “both unique and important”

based on the distinct message such signs convey,

their affordability, and the “special respect for

individual liberty in the home.” Jd. at 54-58. Banning

access to Facebook cannot be compared to a

government effort to limit an individual’s ability to

speak on his own property.

Nor, finally, are amici correct that this Court’s

intervention is needed to resolve a disagreement

among lower court decisions about how ample

alternative channels should be understood. (Law

Professors Amicus Br. 12) The different results in

the cases discussed by amici are exactly what one

would expect when a general legal standard is

applied to widely varying statutes and rules. There

is no reason to believe the courts in the two

supposedly competing camps would not have decided

all the cases precisely the same way.

demonstrating that even if petitioner were correct in

asserting, for example, that Foodnetwork.com fits the

definition of a “commercial social networking site” (it does

not), petitioner could use pauladeen.com for his food

interests; even if he were correct in asserting that the

nytimes.com is a “commercial social networking site” (it is

not), he could obtain the news from other websites.

38

CONCLUSION

The petition for writ of certiorari should be

denied.

Respectfully submitted,

ROY COOPER

Attorney General of North Carolina

Anne Murray Middleton*

Special Deputy Attorney General

June 2016 *Counse! of Record