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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0655%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2016

## Text

—/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
TAREE Ge AUF ie 6 ee viccesecssececevenesccvscowecessevsnes iv
SED IIIT ossicsdvvotibeustdnnsbeisinvcbscedesstunbadiniancieies 1
ee TIE cess nseirsisinsanniiAsasidedunceeedidtsnenpnebissastaiienitiaienes 4
Pe . FR TI irviec vocdesevecsscpasusidancuress 4
is: = SUIT usicn-ophejpsamnisludedesipinseicad eeathatipasanchubssersieninin 8
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0655%3A03. Public record. Not legal advice.