State v. Packingham

IN THE SUPREME COURT OF NORTH CAROLINA
No. 366PA13
FILED 6 NOVEMBER 2015
STATE OF NORTH CAROLINA
v.
LESTER GERARD PACKINGHAM
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 748 S.E.2d 146 (2013), vacating a judgment
entered on 30 May 2012 by Judge William Osmond Smith in Superior Court, Durham
County. Heard in the Supreme Court on 8 September 2014.
Roy Cooper, Attorney General, by Anne M. Middleton and David L. Elliott,
Assistant Attorneys General, for the State-appellant.
Glenn Gerding, Appellate Defender,1 for defendant-appellee.
EDMUNDS, Justice.
The Court of Appeals vacated defendant’s conviction for accessing a social
networking Web site as a registered sex offender, finding that the applicable statute,
N.C.G.S. § 14-202.5, is unconstitutional both on its face and as applied to defendant.
We conclude that the statute is constitutional in all respects. Accordingly, we reverse
the holding to the contrary of the Court of Appeals.
1 Glenn Gerding was appointed to the position of Appellate Defender on 1 November
2015. His motion to withdraw as private assigned counsel was allowed by this Court on 5
November 2015. His motion to represent defendant through this Court’s appointment of
the Appellate Defender was also allowed on 5 November 2015.
STATE V. PACKINGHAM
Opinion of the Court
In 2008, the General Assembly enacted N.C.G.S. § 14-202.5, which bans the
use of commercial social networking Web sites by registered sex offenders. In April
2010, Officer Brian Schnee of the Durham Police Department began an investigation
to detect such sex offenders living in Durham who were illegally accessing commercial
social networking Web sites. Officer Schnee identified defendant Lester Gerard
Packingham (defendant), who had been convicted in 2002 of a sexual offense in
Cabarrus County, North Carolina, as a registered sex offender subject to N.C.G.S.
§ 14-202.5. Officer Schnee located defendant’s name and photograph on the North
Carolina Department of Justice Sex Offender Registry. While investigating the Web
site Facebook.com, Officer Schnee found a user profile page that, based upon the
profile photo, he believed belonged to defendant. Although the name on the Facebook
account was “J.R. Gerrard,” Officer Schnee was able to confirm that the Facebook
page in fact was defendant’s. During a subsequent search of defendant’s residence,
officers recovered a notice of “Changes to North Carolina Sex Offender Registration
Laws” signed by defendant describing commercial social networking Web sites that
he was prohibited from accessing. This document was admitted into evidence at trial.
On 20 September 2010, defendant was indicted by a Durham County grand
jury for violating N.C.G.S. § 14-202.5. On 9 December 2010, defendant filed a motion
to dismiss the charge in Superior Court, Durham County, contending that section 14-
202.5 is unconstitutional on its face or as applied to him. On 19 April 2011, the trial
court entered an order denying defendant’s motion. The trial court’s order included
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a finding of fact that both the State and defendant agreed that Facebook.com is a
social networking Web site as contemplated by N.C.G.S. § 14-202.5. The trial court
declined to address defendant’s facial challenge but found that N.C.G.S. § 14-202.5
was constitutional as applied to defendant. On 22 June 2011, the Court of Appeals
denied defendant’s petition for certiorari.
The case went to trial and, after considering evidence that defendant
maintained a Facebook page, a jury on 30 May 2012 found defendant guilty of one
count of accessing a commercial social networking Web site by a registered sex
offender. The trial court sentenced defendant to a term of six to eight months of
imprisonment, suspended for twelve months, and defendant was placed on
supervised probation.
Defendant appealed to the Court of Appeals, challenging the constitutionality
of N.C.G.S. § 14-202.5. That court determined that N.C.G.S. § 14-202.5 “plainly
involves defendant’s First Amendment rights . . . because it bans the freedom of
speech and association via social media” and concluded that intermediate scrutiny
was appropriate. State v. Packingham, ___ N.C. App. ___, ___, 748 S.E.2d 146, 150
(2013). While acknowledging the legitimate state interest in protecting children from
sex offenders, the Court of Appeals found that the statute “is not narrowly tailored,
is vague, and fails to target the ‘evil’ it is intended to rectify” because it “arbitrarily
burdens all registered sex offenders by preventing a wide range of communication
and expressive activity unrelated to achieving its purported goal.” Id. at ___, 748
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S.E.2d at 154. The court further concluded that the language of N.C.G.S. § 14-202.5
“lacks clarity, is vague, and certainly fails to give people of ordinary intelligence fair
notice of what is prohibited.” Id. at ___, 748 S.E.2d at 153. Accordingly, finding that
the statute violates the First Amendment, the Court of Appeals held the statute
unconstitutional on its face and as applied, and vacated defendant’s conviction. Id.
at ___, 748 S.E.2d at 154. On 7 November 2013, this Court allowed the State’s
Petition for Discretionary Review.
Statutes are presumed constitutional, Wayne Cty. Citizens Ass’n for Better Tax
Control v. Wayne Cty. Bd. of Comm’rs, 328 N.C. 24, 29, 399 S.E.2d 311, 314-15 (1991),
and the interpretation of a statute is controlled by the intent of the legislature, State
v. Hart, 287 N.C. 76, 80, 213 S.E.2d 291, 294-95 (1975). We review challenges to the
constitutionality of a statute de novo. In re Adoption of S.D.W., 367 N.C. 386, 391,
758 S.E.2d 374, 378 (2014) (citing Libertarian Party of N.C. v. State, 365 N.C. 41, 46,
707 S.E.2d 199, 202-03 (2011)).
Defendant argues that N.C.G.S. § 14-202.5 is unconstitutional both on its face
and as applied to him, contending that the statute violates his right to free speech as
guaranteed by the United States and North Carolina Constitutions. U.S. Const.
amend. I (“Congress shall make no law . . . abridging the freedom of speech . . . .”);
N.C. Const. art. I, § 14 (“Freedom of speech and of the press are two of the great
bulwarks of liberty and therefore shall never be restrained . . . .”). As we begin our
analysis, we note that while these constitutional provisions appear absolute,
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Opinion of the Court
“[h]istory, necessity, and judicial precedent have proven otherwise: ‘Freedom of
speech is not an unlimited, unqualified right.’ ” Hest Techs., Inc. v. State ex rel.
Perdue, 366 N.C. 289, 297, 749 S.E.2d 429, 435 (2012) (quoting State v. Leigh, 278
N.C. 243, 250, 179 S.E.2d 708, 712 (1971)), cert. denied, ___ U.S. ___, 134 S. Ct. 99,
187 L. Ed. 2d 34 (2013). In addition, when analyzing alleged violations of our State
Constitution’s Free Speech Clause, this Court has given great weight to the First
Amendment jurisprudence of the United States Supreme Court. See State v.
Petersilie, 334 N.C. 169, 184, 432 S.E.2d 832, 841 (1993) (adopting that Court’s First
Amendment jurisprudence “[i]n this case”).
The issue before us is whether the proscription of access to some social
networking Web sites violates the First Amendment. An as-applied challenge
contests whether the statute can be constitutionally applied to a particular
defendant, even if the statute is otherwise generally enforceable. Frye v. City of
Kannapolis, 109 F. Supp. 2d 436, 439 (M.D.N.C. 1999). A facial challenge maintains
that no constitutional applications of the statute exist, prohibiting its enforcement in
any context. Id. The constitutional standards used to decide either challenge are the
same. Edwards v. District of Columbia, 755 F.3d 996, 1001 (D.C. Cir. 2014).
We begin by considering defendant’s facial challenge, cognizant that a facial
attack on a statute imposes a demanding burden on the challenger. United States v.
Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697, 707 (1987). This
Court rarely upholds facial challenges because “[t]he fact that a statute ‘might
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operate unconstitutionally under some conceivable set of circumstances is insufficient
to render it wholly invalid.’ ” State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277,
282 (1998) (quoting Salerno, 481 U.S. at 745, 107 S. Ct. at 2100, 95 L. Ed. 2d at 707).
The First Amendment is triggered by regulations that burden speech, so we
must make an initial determination whether N.C.G.S. § 14-202.5 is a regulation of
speech or a regulation of conduct. The distinction is critical because a statute that
regulates speech is “subjected to exacting scrutiny: The State must show that the
‘regulation is necessary to serve a compelling state interest and that it is narrowly
drawn to achieve that end.’ ” Burson v. Freeman, 504 U.S. 191, 198, 112 S. Ct. 1846,
1851, 119 L. Ed. 2d 5, 14 (1992) (plurality) (quoting Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 45, 103 S. Ct. 948, 955, 74 L. Ed. 2d 794, 804 (1983)).
First Amendment protection of speech is extended to conduct only when the conduct
in question “is inherently expressive.” Rumsfeld v. Forum for Acad. & Inst’l Rights,
Inc., 547 U.S. 47, 66, 126 S. Ct. 1297, 1310, 164 L. Ed. 2d 156, 175 (2006). In contrast,
a regulation that governs conduct while imposing only an incidental burden upon
speech “must be evaluated in terms of [its] general effect.” United States v. Albertini,
472 U.S. 675, 689, 105 S. Ct. 2897, 2906, 86 L. Ed. 2d 536, 548 (1985). An incidental
burden on speech is permissible “so long as the neutral regulation promotes a
substantial government interest that would be achieved less effectively absent the
regulation.” Id.
The statute at issue provides in pertinent part:
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(a) Offense. — It is unlawful for a sex offender who is
registered in accordance with Article 27A of Chapter 14 of
the General Statutes to access a commercial social
networking Web site where the sex offender knows that the
site permits minor children to become members or to create
or maintain personal Web pages on the commercial social
networking Web site.
(b) For the purposes of this section, a “commercial social
networking Web site” is an Internet Web site that meets all
of the following requirements:
(1) Is operated by a person who derives revenue from
membership fees, advertising, or other sources
related to the operation of the Web site.
(2) Facilitates the social introduction between two or
more persons for the purposes of friendship,
meeting other persons, or information
exchanges.
(3) Allows users to create Web pages or personal
profiles that contain information such as the
name or nickname of the user, photographs
placed on the personal Web page by the user,
other personal information about the user, and
links to other personal Web pages on the
commercial social networking Web site of friends
or associates of the user that may be accessed by
other users or visitors to the Web site.
(4) Provides users or visitors to the commercial
social networking Web site mechanisms to
communicate with other users, such as a
message board, chat room, electronic mail, or
instant messenger.
(c) A commercial social networking Web site does not
include an Internet Web site that either:
(1) Provides only one of the following discrete
services: photo-sharing, electronic mail, instant
messenger, or chat room or message board
platform; or
(2) Has as its primary purpose the facilitation of
commercial transactions involving goods or
services between its members or visitors.
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N.C.G.S. § 14-202.5 (2013).
This statute addresses the ability of registered sex offenders to access some
social networking Web sites. We concluded in Hest that legislation banning the
operation of sweepstake systems primarily regulated “noncommunicative conduct
rather than protected speech.” 366 N.C. at 296, 749 S.E.2d at 435. The plaintiff in
Hest argued that video games which were used to announce the results of the
sweepstakes should be protected by the First Amendment. We disagreed, finding
that the statute at issue in that case prohibited not the video games but the
underlying conduct of a sweepstakes whose outcome was announced through the
video game. Id. at 297, 749 S.E.2d at 435. Unlike the statute in Hest, however, the
statute here defines a “commercial social networking Web site” as one that facilitates
social introduction between people, N.C.G.S. § 14-202.5(b)(2), and provides users with
a means of communicating with each other, id. § 14-202.5(b)(4). As is apparent to
any who access them, social networking Web sites provide both a forum for gathering
information and a means of communication. Even so, like the statute in Hest, the
essential purpose of section 14-202.5 is to limit conduct, specifically the ability of
registered sex offenders to access certain carefully-defined Web sites. This limitation
on conduct only incidentally burdens the ability of registered sex offenders to engage
in speech after accessing those Web sites that fall within the statute’s reach. Thus
we conclude that section 14-202.5 is a regulation of conduct.
Our next inquiry is whether N.C.G.S. § 14-202.5 governs conduct on the basis
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of the content of speech or is instead a content-neutral regulation. See Brown v. Town
of Cary, 706 F.3d 294, 300 (4th Cir. 2013) (“Our first task is to determine whether the
[statute] ‘is content based or content neutral . . . .’ ”) (quoting City of Ladue v. Gilleo,
512 U.S. 43, 59, 114 S. Ct. 2038, 2047, 129 L. Ed. 2d 36, 50 (1994) (O’Connor, J.,
concurring)). The level of scrutiny we apply is based on this determination.
Restrictions based upon the content of the speech trigger strict scrutiny, see United
States v. Playboy Entm’t Grp., 529 U.S. 803, 814, 120 S. Ct. 1878, 1886, 146 L. Ed. 2d
865, 880 (2000), and are “presumptively invalid,” R.A.V. v. City of St. Paul, 505 U.S.
377, 382, 112 S. Ct. 2538, 2542, 120 L. Ed. 2d 305, 317 (1992) (citations omitted). To
survive under strict scrutiny, the regulation “must be the least restrictive means of
achieving a compelling state interest.” McCullen v. Coakley, ___ U.S. ___, ___, 134 S.
Ct. 2518, 2530, 189 L. Ed. 2d 502, 515 (2014) (citation omitted). In contrast, content-
neutral regulations of conduct that impose an incidental burden on speech are subject
to intermediate scrutiny because they “pose a less substantial risk of excising certain
ideas or viewpoints from the public dialogue.” Turner Broad. Sys., Inc. v. FCC, 512
U.S. 622, 642, 114 S. Ct. 2445, 2459, 129 L. Ed. 2d 497, 517 (1994).
The United States Supreme Court recently discussed the distinction between
content-based and content-neutral regulations in Reed v. Town of Gilbert, ___ U.S.
___, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015). Under Reed, a court initially must
consider “whether the law is content neutral on its face.” Id. at ___, 135 S. Ct. at
2228, 192 L. Ed. 2d at 246. Although Reed focused on the interpretation of content-
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based regulations of speech, while we concluded above that section 14-202.5 is a
regulation of conduct, even under a Reed analysis we see that section 14-202.5 is a
content-neutral regulation. On its face, this statute imposes a ban on accessing
certain defined commercial social networking Web sites without regard to any content
or message conveyed on those sites. The limitations imposed by the statute are based
not upon speech contained in or posted on a site, but instead focus on whether
functions of a particular Web site are available for use by minors. Thus, we conclude,
as the Court did in Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746,
2754, 105 L. Ed. 2d 661, 675 (1989), that section 14-202.5 “involve[s] a facially
content-neutral ban on the use [of commercial social networking Web sites].” Reed,
___ U.S. at ___, 135 S. Ct. at 2228, 192 L. Ed. 2d at 247 (citing Ward, 491 U.S. at 792,
109 S. Ct. at 2754, 105 L. Ed. 2d at 676).
As to the intent of the General Assembly in passing section 14-202.5, the trial
court found as a matter of law that the purpose of the statute is to “facilitate the
legitimate and important aim of the protection of minors from sex offenders who are
registered in accordance with Chapter 14, Article 27A of the General Statutes.” The
parties have not challenged this conclusion of law. Reed states that a law, though
content neutral on its face, is “considered [a] content-based regulation[] of speech” if
the law “cannot be ‘justified without reference to the content of the regulated speech’
or [was] adopted by the government ‘because of disagreement with the message [the
speech] conveys.’ ” Id. at ___, 135 S. Ct. at 2227, 192 L. Ed. 2d at 245 (fourth
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alteration in original) (quoting Ward, 491 U.S. at 791, 109 S. Ct. at 2754, 105 L. Ed.
2d at 675). A court must address both prongs before concluding that a lower level of
scrutiny applies to the law. Id. at ___, 135 S. Ct. at 2228, 192 L. Ed. 2d at 247.
Assuming that these tests also apply to a regulation of conduct, we see that section
14-202.5 satisfies both. The justification of the statute—protecting minors from
registered sex offenders—is unrelated to any speech on a regulated site. Nor does the
statute have anything to say regarding the content of any speech on a regulated site.
As a result, we conclude that, to the extent Reed applies to our analysis of section 14-
202.5, the statute satisfies that case’s requirements and strict scrutiny is not
required. Although the statute may impose an incidental burden on the ability of
registered sex offenders to engage in speech on the Internet, “[a] regulation that
serves purposes unrelated to the content of expression is deemed neutral, even if it
has an incidental effect on some speakers or messages but not others.” Ward, 491
U.S. at 791, 109 S. Ct. at 2754, 105 L. Ed. 2d at 675 (citation omitted). Accordingly,
we conclude that N.C.G.S. § 14-202.5 is a content-neutral regulation requiring
intermediate scrutiny.
“Articulations of intermediate scrutiny vary depending on context, but tend to
require an important or substantial government interest, a direct relationship
between the regulation and the interest, and regulation no more restrictive than
necessary to achieve that interest.” Hest, 366 N.C. at 298, 749 S.E.2d at 436 (citation
omitted). The Supreme Court has provided guidance in applying intermediate
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scrutiny. In United States v. O’Brien, the defendant claimed that the statute
forbidding destruction of his Selective Service registration card was unconstitutional
as applied to him because such a ban on burning the card violated his right to free
speech. 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). The Supreme Court
found that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course
of conduct,” id. at 376, 88 S. Ct. at 1678, 20 L. Ed. 2d at 679, the regulation
is sufficiently justified [1] if it is within the constitutional
power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental
interest is unrelated to the suppression of free expression;
and [4] if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest,
id. at 377, 88 S. Ct. at 1679, 20 L. Ed. 2d at 680. Because the statute at issue here is
a content-neutral regulation that imposes only an incidental burden on speech, we
believe the four-factor test from O’Brien is instructive in evaluating defendant’s facial
attack on N.C.G.S. § 14-202.5.
Looking to the first two O’Brien factors, the parties agree that promulgating
restrictions such as those contained in N.C.G.S. § 14-202.5 on registered sex offenders
is within the constitutional power of the General Assembly and that protecting
children from sexual abuse is a substantial governmental interest. We then consider
O’Brien’s third factor, whether this governmental interest is related to the
suppression of free expression. The State asserts that the statute was enacted to
prevent registered sex offenders from prowling on social media and gathering
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information about potential child targets. Viewing this statute as a preventive
measure apparently intended to forestall illicit lurking and contact, we see that it is
distinguishable from other North Carolina statutes that criminalize communications
which have already occurred. The interest reflected in the statute at bar, which
protects children from convicted sex offenders who could harvest information to
facilitate contact with potential victims, is unrelated to the suppression of free speech.
Accordingly, the statute satisfies O’Brien’s third factor.
Although the fourth O’Brien factor appears to reflect the strict scrutiny
requirement that the regulation be the “least restrictive means” of carrying out a
compelling state interest, McCullen, ___ U.S. at ___, 134 S. Ct. at 2530, 189 L. Ed. 2d
at 515, the United States Supreme Court has since explained that for content-neutral
regulations, the statute should be “narrowly tailored to serve a significant
governmental interest,” Ward, 491 U.S. at 796, 109 S. Ct. at 2756, 105 L. Ed. 2d at
678 (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct.
3065, 3069, 82 L. Ed. 2d 221, 227 (1984)) (finding that a narrowly tailored regulation
controlling noise does not restrict free speech). Narrow tailoring requires the
government to demonstrate that “alternative measures that burden substantially
less speech would fail to achieve the government’s interests, not simply that the
chosen route is easier.” McCullen, ___ U.S. at ___, 134 S. Ct. at 2540, 189 L. Ed. 2d
at 526.
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Defendant argues that the statute is not narrowly tailored. Specifically,
defendant contends that the statute’s definition of a “commercial social networking
Web site” is overbroad, that the statute does not take into account the underlying
offense of conviction or the likelihood of recidivism, that the statute does not require
criminal intent, that the statute is underinclusive because, inter alia, it applies only
to commercial Web sites, that less burdensome laws already exist to protect children
from baleful Internet contacts, and that sufficient alternatives allowing
communication do not exist. Defendant’s arguments are premised on the assumption
that a statute regulating the manner of speech must be drawn as narrowly as
possible, or at least more narrowly than this statute. However, the Supreme Court
has stated explicitly that “[l]est any confusion on the point remain, we reaffirm today
that a regulation of the time, place, or manner of protected speech must be narrowly
tailored to serve the government’s legitimate, content-neutral interests but that it
need not be the least restrictive or least intrusive means of doing so.” Ward, 491 U.S.
at 798, 109 S. Ct. at 2757-58, 105 L. Ed. 2d at 680. The Court went on to explain that
“[s]o long as the means chosen are not substantially broader than necessary to
achieve the government’s interest, however, 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, 109 S. Ct. at 2758, 105 L. Ed.
2d at 681.
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Instead of imposing a blanket prohibition against Internet use, the statute
establishes four specific criteria that must be met in order for a commercial social
networking Web site to be prohibited. N.C.G.S. § 14-202.5(b). In addition, the statute
entirely exempts Web sites that are exclusively devoted to speech, such as instant
messaging services and chat rooms. Id. § 14-202.5(c). Thus we see that the General
Assembly has carefully tailored the statute in such a way as to prohibit registered
sex offenders from accessing only those Web sites that allow them the opportunity to
gather information about minors, thereby addressing the evil that the statute seeks
to prevent. While we acknowledge that defendant has identified some areas in which
the statute could have been drafted even more narrowly, we conclude that the statute
is sufficiently narrowly drawn to satisfy the requirements of Ward.
Our inquiry does not end here, however. A content-neutral statute not only
must be narrowly tailored but must also “leave open ample alternative channels for
communication.” Ward, 491 U.S. at 791, 109 S. Ct. at 2753, 105 L. Ed. 2d at 675
(quoting Cmty. for Creative Non-Violence, 468 U.S. at 293, 104 S. Ct. at 3069, 82 L.
Ed. 2d at 227). Subsection 14-202.5(c) allows such alternatives through specific
exceptions for Web sites that provide discrete e-mail, chat room, photo-sharing, and
instant messaging services. A Web site that requires one seeking access to provide
no more than a username and an email address to reach the page does not necessarily
violate the statute. Only a site that generates or creates a Web page or a personal
profile for the user and otherwise meets the requirements of the statute is prohibited.
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In addition, even if a site falls within the definition of a “commercial social networking
Web site” found in subsection 14-202.5(b), in order to convict a registered sex offender
of accessing the site, the State must prove that “the sex offender knows that the site
permits minor children to become members or to create or maintain personal Web
pages on the commercial social networking Web site.” N.C.G.S. § 14-202.5(a).
In his brief and argument to this Court, defendant lists numerous well-known
Web sites that he contends he could not access legally. In considering those and other
similar sites, we find that even where defendant is correct, the Web offers numerous
alternatives that provide the same or similar services that defendant could access
without violating N.C.G.S. § 14-202.5. For example, defendant would not violate
N.C.G.S. § 14-202.5 by accessing the Paula Deen Network, a commercial social
networking Web site that allows registered users to swap recipes and discuss cooking
techniques, because its Terms of Service require users to be at least eighteen years
old to maintain a profile. Paula Deen Network Terms of Service,
http://www.pauladeen.com/terms-of-service/ (last visited 5 November 2015) (“This
website is designed for and targeted to Adults. It is intended solely and exclusively
for those at least 18 years of age or older.”). Similarly, users may follow current
events on WRAL.com, which requires users to be at least eighteen years old to
register with the site and, as a result, is not prohibited. Capitol Broadcasting
Company Terms of Use, http://www.capitolbroadcasting.com/terms-of-use/ (last
visited 5 November 2015) (“[Y]ou must be at least 18 years old to register and to use
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the Services.”). A sex offender engaging in an on-line job search is free to use the
commercial social networking Web site Glassdoor.com, which prohibits use by
individuals under the age of eighteen. Glassdoor Terms of Use,
http://www.glassdoor.com/about/terms.htm (last visited 5 November 2015) (“To
access or use Glassdoor, you must be 18 years of age or older . . . .”). Finally, sex
offenders permissibly may access Shutterfly to share photos, because that site limits
its users to those eighteen and older. Shutterfly Terms of Use, http://shutterfly-
inc.com/terms.html (last visited 5 November 2015) (“In order to create a member
account with any of our Sites and Apps, you must be at least 18 years of age.”).
While we leave for another day the question whether a site’s terms of use alone
are sufficient as a matter of law to impute knowledge of the site’s limitations on access
to a registrant, such terms of use provide specific and pertinent information to a
registered sex offender seeking lawful access to the Internet. These examples
demonstrate that the Web offers registered sex offenders myriad sites that do not run
afoul of the statute. In addition, such methods of communication as text messages,
FaceTime, electronic mail, traditional mail, and phone calls, which are not based on
use of a Web site, are unrestricted. Accordingly, the regulation leaves open ample
channels of communication that registered sex offenders may freely access.
Defendant cites cases from other jurisdictions faulting similar statutes.
However, those cases are not binding on this Court, and the statutes under
consideration in those cases are readily distinguishable from our own. For instance,
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a federal circuit court found unconstitutional an Indiana statute that sought to
prevent most sex offenders from communicating with minors by prohibiting their use
of commercial social networking Web sites, including instant messaging services and
chat rooms. See Doe v. Prosecutor, Marion Cty., 705 F.3d 694, 695-96 (7th Cir. 2013).
The circuit court found that the law was not narrowly tailored to prevent illicit
communications between sex offenders and minors. Id. at 695. Not only did the
Indiana statute prohibit use of instant messaging and chat room services, both of
which are exempted under N.C.G.S. § 14-202.5, Indiana’s statute focused on
preventing communications, while North Carolina’s statute focuses on preventing
registered sex offenders from gathering information about minors on the Internet.
Similarly, while a federal court concluded that Louisiana’s statute, which was
analogous to Indiana’s, was facially unconstitutional because it was vague and
overbroad, Doe v. Jindal, 853 F. Supp. 2d 596, 607 (M.D. La. 2012), Louisiana
thereafter amended that statute to a version more in line with N.C.G.S. § 14-202.5,
see La. Rev. Stat. Ann. 14:91.5 (2012), available at
http://legis.la.gov/Legis/Law.aspx?d=78714.
Thus, we conclude that N.C.G.S. § 14-202.5 satisfies O’Brien’s four factors, is
narrowly tailored to serve a substantial governmental interest, and leaves available
ample alternative channels of communication. Defendant has failed to meet the high
bar necessary to mount a successful facial challenge. See, e.g., Thompson, 349 N.C.
at 496, 508 S.E.2d at 285 (holding defendant’s facial challenge to a statute regulating
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pretrial release failed when defendant did not establish that no set of circumstances
existed under which the act would not be valid). Accordingly, we conclude the statute
is constitutional on its face.
We next consider defendant’s as-applied challenge. A statute that is
constitutional on its face nevertheless may be unconstitutional as applied to a
particular defendant. Because Facebook does not limit users to those over the age of
eighteen and otherwise fits the definition of a commercial social networking Web site
set out in N.C.G.S. § 14-202.5, defendant is forbidden to access that site unless the
statute is unconstitutional as applied to him. Earlier in this opinion we observed that
the trial court made the uncontested finding that the government’s interest here is
protecting minors by preventing registered sex offenders from gathering information
about them on social media. Although we also found that the statute is content-
neutral, we observed that it imposes an incidental burden on speech on the Internet.
We now consider whether this incidental restriction on defendant is no greater than
is essential to further the government’s interest. O’Brien, 391 U.S. at 377, 88 S. Ct.
at 1679, 20 L. Ed. 2d at 680.
Beginning with consideration of the nature and severity of the incidental
restriction, we have stated that “[i]t is possible to find some kernel of expression in
almost every activity a person undertakes.” Hest, 366 N.C. at 298, 749 S.E.2d at 436
(quoting City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S. Ct. 1591, 1595, 104 L. Ed.
2d 18, 25 (1989)). The United States Fourth Circuit Court of Appeals has held that,
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in the context of responding to a posting on a political campaign page maintained on
Facebook.com, simply “liking” the post is speech protected by the First Amendment,
an analysis with which we agree. See Bland v. Roberts, 730 F.3d 368, 386 (4th Cir.
2013) (“[C]licking on the ‘like’ button literally causes to be published the statement
that the User ‘likes’ something, which is itself a substantive statement.”). Here,
defendant posted the following on Facebook: “Man God is Good! How about I got so
much favor they dismissed the ticket before court even started? . . . Praise be to GOD,
WOW! Thanks JESUS!” If merely “liking” a post on Facebook.com is speech protected
by the First Amendment, we have no doubt that posting a message on that site falls
within this category as well. Thus, the statutory restrictions on defendant’s right to
speech on Facebook, while incidental, are not trivial.
Considering next the governmental interest in protecting minors, when “a
direct relationship between the regulation and the interest” exists, Hest, 366 N.C. at
298, 749 S.E.2d at 436, an incidental burden on speech can be justified if the
governmental interest is being furthered, see Turner Broad. Sys., 512 U.S. at 662,
114 S. Ct. at 2469, 129 L. Ed. 2d at 530. Nevertheless, “[w]hen the Government
defends a regulation on speech as a means to . . . prevent anticipated harms, it must
do more than simply ‘posit the existence of the disease sought to be cured.’ ” Id. at
664, 114 S. Ct. at 2470, 129 L. Ed. 2d at 531 (quoting Quincy Cable TV, Inc. v. FCC,
768 F.2d 1434, 1455 (D.C. Cir. 1995)). Instead, the State must demonstrate “that the
regulation will in fact alleviate these harms in a direct and material way.” Id.
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(citations omitted). The State argues that protection of minors from known sexual
predators is a vital duty, one this Court has recognized in another context. See
Standley v. Town of Woodfin, 362 N.C. 328, 333, 661 S.E.2d 728, 731 (2008)
(discussing the risk of recidivism among sex offenders).
In considering this balance between the governmental interest and the
incidental burden on this defendant’s speech, we are mindful of our opinion in Britt
v. State, in which we were confronted with a challenge to the constitutionality of
N.C.G.S. § 14-415.1, which banned all convicted felons from possessing firearms. 363
N.C. 546, 681 S.E.2d 320 (2009). We held that the statute violated the North Carolina
Constitution when applied to the plaintiff because his underlying offense (a
nonviolent drug crime), his subsequent lawful behavior and demonstrated respect for
the law, and his history of peaceable conduct following his conviction, all gave no
indication that he posed any substantial threat to society. Id. at 550, 681 S.E.2d at
323. As a result, we concluded that the statute barring the plaintiff from possessing
a firearm was “not fairly related” to the governmental purpose for which the statute
was enacted, which was “the preservation of public peace and safety.” Id. The statute
was unconstitutional as applied to the plaintiff when prosecution would not further
that governmental interest.
As indicated by our analysis in Britt, the determination whether a statute is
unconstitutional as applied is strongly influenced by the facts in a particular case. In
ascertaining whether the government’s interest in protecting children from
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Opinion of the Court
registered sex offenders who are lurking on social networking Web sites and gleaning
information on potential targets is furthered by prosecution of this defendant, we
observe that defendant has the status of a registered sex offender because he was
convicted of indecent liberties with a minor, a sex crime against a child falling directly
within the purview of section 14-202.5. Officers who searched his home found a
signed written notice advising defendant of sites he could not legally access.
Defendant set up his Facebook page under an alias, further indicating his awareness
that he was indulging in forbidden behavior while simultaneously hiding his identity
from investigators and parents. Thus defendant’s case is readily distinguishable from
Britt, in which the plaintiff’s underlying conviction for drugs was considerably less
directly related to the possession of “sporting rifles and shotguns” than is defendant’s
indecent liberties conviction to his use of Internet sites frequented by minors.
Moreover, the plaintiff in Britt discussed the law’s application to him with his local
sheriff and thereafter voluntarily divested himself of all firearms before instituting
his constitutional challenge to the statute, while defendant here deliberately
disguised his identity. Id. at 547-48, 681 S.E.2d at 321-22. Unlike the plaintiff in
Britt, defendant neither demonstrated respect for the law nor made good faith efforts
to comply with the statute. These facts satisfy us that the incidental burden imposed
upon this defendant, who is barred from Facebook.com but not from many other sites,
is not greater than necessary to further the governmental interest of protecting
children from registered sex offenders. Thus, N.C.G.S. § 14-202.5 is not an
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unreasonable regulation and is constitutional as applied to defendant. Cf. id. at 550,
681 S.E.2d at 323.
Defendant also argues that N.C.G.S. § 14-202.5 is unconstitutionally
overbroad. “In the First Amendment context, . . . this Court recognizes ‘a second type
of facial challenge,’ whereby a law may be invalidated as overbroad if ‘a substantial
number of its applications are unconstitutional, judged in relation to the statute’s
plainly legitimate sweep.’ ” United States v. Stevens, 559 U.S. 460, 473, 130 S. Ct.
1577, 1587, 176 L. Ed. 2d 435, 447 (2010) (quoting Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 n.6, 128 S. Ct. 1184, 1190 n.6, 170 L. Ed. 2d 151,
160 n.6 (2008)). In Broadrick v. Oklahoma, the Court clarified the limited scope of
the overbreadth doctrine, explaining that
the plain import of our cases is, at the very least, that
facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a limited
one at the outset, attenuates as the otherwise unprotected
behavior that it forbids the State to sanction moves from
“pure speech” toward conduct and that conduct—even if
expressive—falls within the scope of otherwise valid
criminal laws that reflect legitimate state interests in
maintaining comprehensive controls over harmful,
constitutionally unprotected conduct. Although such laws,
if too broadly worded, may deter protected speech to some
unknown extent, there comes a point where that effect—at
best a prediction—cannot, with confidence, justify
invalidating a statute on its face and so prohibiting a State
from enforcing the statute against conduct that is
admittedly within its power to proscribe.
413 U.S. 601, 615, 93 S. Ct. 2908, 2917-18, 37 L. Ed. 2d 830, 842 (1973). Because the
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notion of striking a statute at the request of one to whom it otherwise unquestionably
applies goes against the grain of “prudential limitations on constitutional
adjudication,” New York v. Ferber, 458 U.S. 747, 767, 102 S. Ct. 3348, 3360, 73 L. Ed.
2d 1113, 1130 (1982), the Supreme Court of the United States has recognized that
the doctrine is “strong medicine” to be administered only with caution and as a “last
resort,” id. at 769, 102 S. Ct. at 3361, 73 L. Ed. 2d at 1130 (quoting Broadrick, 413
U.S. at 613, 93 S. Ct. at 2916, 37 L. Ed. 2d at 814). A party raising such a challenge
“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, 123 S. Ct.
2191, 2198, 156 L. Ed. 2d 148, 159 (2003) (alteration in original) (quoting N.Y. State
Club Ass’n v. City of New York, 487 U.S. 1, 14, 108 S. Ct. 2225, 2234, 101 L. Ed. 2d 1,
17 (1988)). When a statute’s infringement on speech protected under the First
Amendment is marginal, a finding of facial invalidity is inappropriate if the
“remainder of the statute . . . covers a whole range of easily identifiable and
constitutionally proscribable . . . conduct.” Ferber, 458 U.S. at 770 n.25, 102 S. Ct. at
3362 n.25, 73 L. Ed. 2d at 1131 n.25 (alterations in original) (quoting U.S. Civil Serv.
Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 580-81, 93 S. Ct. 2880, 2898,
37 L. Ed. 2d 796, 817 (1973)).
In an overbreadth analysis, the reviewing court must “construe the challenged
statute.” United States v. Williams, 553 U.S. 285, 293, 128 S. Ct. 1830, 1838, 170 L.
Ed. 2d 650, 662 (2008). As detailed above in our analysis of the facial constitutionality
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Opinion of the Court
of the statute, we see that the statute is drafted carefully to limit its reach by
establishing four specific criteria that must be met before access to a commercial
social networking Web site is prohibited to a registered sex offender, N.C.G.S. § 14-
202.5(b); that the statute exempts sites that are exclusively devoted to speech, id. §
14-202.5(c); and that the statute requires the State to prove that a registered sex
offender knew the site permitted minor children to become members or to create or
maintain personal Web pages on the commercial social networking Web site, id. § 14-
202.5(a). These factors ensure that registered sex offenders are prohibited from
accessing only those Web sites where they could actually gather information about
minors to target. Outside these limits, registered sex offenders are free to use the
Internet.
Although this statute “may deter protected speech to some unknown extent,”
Broadrick, 413 U.S. at 615, 93 S. Ct. at 2917, 37 L. Ed. 2d at 842, that effect can be
characterized “at best [as] a prediction,” id., 93 S. Ct. at 2917-18, 37 L. Ed. 2d at 842,
and we “cannot, with confidence, justify invalidating [this] statute on its face,” id., 93
S. Ct. at 2918, 37 L. Ed. 2d at 842, and prohibit the State from continuing to enforce
a statute protecting such an important government interest, id. Given the reluctance
with which courts administer the strong medicine of overbreadth, we conclude section
14-202.5 does not sweep too broadly in preventing registered sex offenders from
accessing carefully delineated Web sites where vulnerable youthful users may
congregate. As in Broadrick, “whatever overbreadth may exist should be cured
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Opinion of the Court
through case-by-case analysis of the fact situations to which its sanctions, assertedly,
may not be applied.” Id. at 615-16, 93 S. Ct. at 2918, 37 L. Ed. 2d at 842.
Finally, the State challenges the Court of Appeals holding that the statute is
unconstitutionally vague. Laws that are not “clearly defined” are void for vagueness
under the Due Process Clause. See Grayned v. City of Rockford, 408 U.S. 104, 108,
92 S. Ct. 2294, 2298, 33 L. Ed. 2d 222, 227 (1972). Laws must “give the person of
ordinary intelligence a reasonable opportunity to know what is prohibited,” id. at 108,
92 S. Ct. at 2298-99, 33 L. Ed. 2d at 227, and must also provide sufficient clarity to
prevent arbitrary and discriminatory enforcement, see Petersilie, 334 N.C. at 182, 432
S.E.2d at 839; see also Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). Vague laws chill free speech
because “[u]ncertain meanings inevitably lead citizens to ‘steer far wider of the
unlawful zone . . . than if the boundaries of the forbidden areas were clearly
marked.’ ” Grayned, 408 U.S. at 109, 92 S. Ct. at 2299, 33 L. Ed. 2d at 228 (second
alteration in original) (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316,
1323, 12 L. Ed. 2d 377, 385 (1964)).
Vagueness cannot be raised by a defendant whose conduct falls squarely within
the scope of the statute. See Parker v. Levy, 417 U.S. 733, 756, 94 S. Ct. 2547, 2562,
41 L. Ed. 2d 439, 458 (1974) (“One to whose conduct a statute clearly applies may not
successfully challenge it for vagueness.”); see also Hoffman Estates, 455 U.S. at 495,
102 S. Ct. at 1191, 71 L. Ed. 2d at 369 (“A plaintiff who engages in some conduct that
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is clearly proscribed cannot complain of the vagueness of the law as applied to the
conduct of others.”). The Court of Appeals “assume[d] that persons of ordinary
intelligence would likely interpret the statute as prohibiting access to mainstream
commercial social networking sites such as Facebook.com.” Packingham, ___ N.C.
App. at ___, 748 S.E.2d at 153. Whatever the status of other Web sites, no party
disputes that Facebook.com, the site at issue here, falls under N.C.G.S. § 14-202.5’s
definition of “commercial social networking Web site.” While an argument may be
made that the statutory term “access” could be vague in other contexts, defendant’s
logging into his Facebook account and posting a message on his page is
unquestionably “accessing” Facebook.com. Defendant’s conduct defeats his
vagueness claim.
Accordingly, we reverse the opinion of the Court of Appeals.
REVERSED.
Justice ERVIN did not participate in the consideration or decision of this case.
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HUDSON, J., dissenting
Justice HUDSON dissenting.
The majority concludes that N.C.G.S. § 14-202.5 (2013), which bars any
registered sex offender from accessing any commercial social networking site on
which he knows a minor can create or maintain a profile, is constitutional on its face
and as applied to defendant. Because I conclude that the statute is unconstitutional
on its face, I disagree with the majority’s reversal of the Court of Appeals. More
specifically, I conclude that section 14-202.5 is not narrowly tailored enough to
withstand even intermediate scrutiny and that it is facially overbroad under the First
Amendment. Accordingly, I respectfully dissent.
As an initial matter, I agree with the majority opinion to the extent it concludes
that N.C.G.S. § 14-202.5, by proscribing access to commercial social networking sites,
targets sites which are used for “gathering information and [as] means of
communication.” However, I do not agree with the later assertion that the statute
primarily regulates conduct and places only an “incidental” burden on speech. This
statute completely bars registered sex offenders from communicating with others
through many widely utilized commercial networking sites. Therefore, in my view,
it primarily targets expressive activity usually protected by the First Amendment.
See, e.g., Reno v. ACLU, 521 U.S. 844, 870, 117 S. Ct. 2329, 2344 (1997) (observing
that previous cases from that Court “provide no basis for qualifying the level of First
Amendment scrutiny that should be applied” to online activities); see also Brown v.
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HUDSON, J., dissenting
Entm’t Merchs. Ass’n, ___ U.S. ___, ___, 131 S. Ct. 2729, 2733 (2011) (“And whatever
the challenges of applying the Constitution to ever-advancing technology, the basic
principles of freedom of speech and the press, like the First Amendment’s command,
do not vary when a new and different medium for communication appears.” (citation
and internal quotation marks omitted)).
The majority finds the “four-factor test from [United States v. O’Brien, 391 U.S.
367, 88 S. Ct. 1673 (1968)] instructive” in applying intermediate scrutiny to what it
sees as an “incidental” burden on speech. O’Brien involved a regulatory ban on
burning of a draft card, which the Court saw as conduct having a “communicative
element.” Id. at 376, 88 S. Ct. at 1678. Because I read O’Brien to apply only where
the restriction primarily targets expressive conduct, and because the statute at issue
here necessarily burdens speech directly, I would not apply O’Brien’s four-factor test
here. See id., 88 S. Ct. at 1678-79 (“This Court has held that when ‘speech’ and
‘nonspeech’ elements are combined in the same course of conduct, a sufficiently
important governmental interest in regulating the nonspeech element can justify
incidental limitations on First Amendment freedoms.”). Instead, I would analyze this
statute as one that, by design and in effect, primarily and directly regulates First
Amendment-protected activity, not conduct.
Because this statute primarily regulates speech (and other protected activity),
I would apply the scrutiny applicable to restrictions on speech. See, e.g., McCullen v.
Coakley, ___ U.S. ___, ___, 134 S. Ct. 2518, 2530 (2014); Holder v. Humanitarian Law
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STATE V. PACKINGHAM
HUDSON, J., dissenting
Project, 561 U.S. 1, 26-28, 130 S. Ct. 2705, 2723-24 (2010). According to these cases,
the next step would be to determine whether the statute is content-based or content-
neutral. Content-based restrictions are “presumptively unconstitutional” and can
stand only if they survive strict scrutiny, the most difficult test in federal
constitutional law. McCullen, ___ at ___, 134 S. Ct. 2530. In contrast, content-neutral
measures that burden speech are subject to a form of intermediate scrutiny—a still
difficult but less exacting analysis. See id. at ___, 134 S. Ct. 2530.
Here, applying the United States Supreme Court’s recent decision in Reed v.
Town of Gilbert, ___ U.S. ___, 135 S. Ct. 2218 (2015), the majority concludes that
N.C.G.S. § 14-202.5 is a content-neutral burden on conduct only incidentally affecting
speech. While I think there is a strong argument in light of Reed that the statute is
content-based because it prohibits registered sex offenders from accessing some
websites, but not others, based on the content that appears on the sites, I do not think
we need to resolve this question because I conclude that the law cannot withstand
even intermediate scrutiny.
The intermediate scrutiny standard applicable to content-neutral regulations
on speech requires the government to demonstrate, inter alia, that the restriction is
“narrowly tailored to serve a significant governmental interest.” McCullen, ___ U.S.
at ___, 134 S. Ct. at 2534 (quoting Ward v. Rock Against Racism, 491 U.S.781, 796,
109 S. Ct. 2756, 2746 (1989)). More specifically,
[f]or a content-neutral time, place, or manner
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HUDSON, J., dissenting
regulation to be narrowly tailored, it must not burden
substantially more speech than is necessary to further the
government’s legitimate [and significant] interests. Such
a regulation, unlike a content-based restriction of speech,
need not be the least restrictive or least intrusive means of
serving the government’s interests. But the government
still may not regulate expression in such a manner that a
substantial portion of the burden on speech does not serve
to advance its goals.
Id. at ___, 134 S. Ct. at 2535 (citations and internal quotation marks omitted). In
short, when a statute “burden[s] substantially more speech than necessary to achieve
the [government’s] asserted interests,” it will fail this form of intermediate scrutiny.
Id. at ___, 134 S. Ct. at 2537. Here, there is no dispute that the State’s purported
concern—protecting minors from exploitation by registered sex offenders using the
Internet—qualifies as a legitimate and significant government interest. The central
question, then, is whether section 14-202.5 “burden[s] substantially more speech than
necessary” in support of that interest. Id. at ___, 134 S. Ct. at 2537.
I conclude that it does. First, the statute as written sweeps too broadly
regarding who is subject to its prohibitions. As noted, the State’s interest here is in
protecting minors from registered sex offenders using the Internet. However, this
statute applies to all registered offenders. See § 14-202.5(a) (“It is unlawful for a
[registered] sex offender . . . to access a commercial social networking Web site where
the sex offender knows that the site permits minor children to become members or to
create or maintain personal Web pages on the commercial social networking Web
site.”). The statute is not restricted in application only to those whose offenses
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harmed a minor or in some way involved a computer or the Internet, nor to those who
have been shown to be particularly violent, dangerous, or likely to reoffend. This
statute therefore groups together, without distinction, offenders whose history and
past conduct directly implicate the State’s concerns with those who do not. To the
extent the statute does so, it “burden[s] . . . more speech than necessary to achieve
the [State’s] interests.” McCullen, ___ U.S. at ___, 134 S. Ct. at 2537.
Second, as written, the statute also sweeps far too broadly regarding the
activity it prohibits. The majority asserts that the statute prohibits “registered
sex offenders from accessing only those Web sites that allow them the opportunity to
gather information about minors.” But in fact, the statute contains no such
limitation. Section 14-202.5 defines the term “commercial social networking Web
site” as a website that (1) is operated by someone who derives revenue from the site;
(2) facilitates “social introduction” or “information exchanges” between two or more
people; (3) allows users “to create Web pages or personal profiles that contain
information such as the name or nickname of the user, photographs placed on the
personal Web page by the user, [or] other personal information about the user . . .
that may be accessed by other users or visitors” to the site; and (4) provides “users or
visitors mechanisms to communicate with other users.” N.C.G.S. § 14-202.5(b). I
note in particular that the statute’s description of a “personal profile[ ],” and the
language “such as” when referring to the information that can appear in such profiles,
could bring within the statute’s scope many websites that allow users to register by
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going through the minimal process of creating a username and adding an email
address or telephone number. As a result, this definition clearly includes sites that
are normally thought of as “social networking” sites, like Facebook, Google+,
LinkedIn, Instagram, Reddit, and MySpace. However, the statute also likely includes
sites like Foodnetwork.com, and even news sites like the websites for The New York
Times and North Carolina’s own News & Observer. See The News & Observer Terms
of Service, http://www.newsobserver.com/customer-service/terms-of-service/ (last
visited Oct. 22, 2015) (stating that “[i]f you are under eighteen (18) then you may only
use NewsObserver.com with the consent of a parent or legal guardian” but not
limiting registration on the site to adults). Most strikingly, the statute may even bar
all registered offenders from visiting the sites of Internet giants like Amazon 2 and
Google.
In short, however legitimate—even compelling—the State’s interest in
protecting children might be, the plausible sweep of the statute as currently written
“create[s] a criminal prohibition of alarming breadth,” United States v. Stevens, 559
U.S. 460, 474, 130 S. Ct. 1577, 1588 (2010), and extends well beyond the evils the
State seeks to combat. I therefore conclude that N.C.G.S. § 14-202.5 “burden[s]
2 The statute does except from this definition any website that “[h]as as its primary
purpose the facilitation of commercial transactions involving goods or services between its
members or visitors.” N.C.G.S. § 14-202.5(c)(2) (emphasis added). However, as defendant
argues, “Amazon’s primary purpose is to facilitate transactions between Amazon itself and its
visitors, not between users of the Web site and other users.” (Emphasis added.) Accordingly,
it appears that this exception does not actually apply to websites like Amazon, but only covers
websites like Craigslist or eBay.
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substantially more speech than necessary to achieve the [State’s legitimate]
interests,” McCullen, ___ U.S. at ___, 134 S. Ct. at 2537, and cannot survive even the
intermediate scrutiny applied to content-neutral restrictions on speech.
In addition, for similar reasons, I conclude that this statute is also facially
overbroad under the First Amendment. The overbreadth inquiry is very similar to
the “narrow-tailoring” inquiry described above: First Amendment overbreadth
doctrine requires a court to invalidate a statute that “prohibits a substantial amount
of protected speech.” United States v. Williams, 553 U.S. 285, 292, 128 S. Ct. 1830,
1838 (2008). There is, however, one important nuance. Namely, while the Supreme
Court of the United States has often invalidated specific applications of statutes
under as-applied challenges, see, e.g., McCullen, ___ U.S. at ___, 134 S. Ct. at 2528,
2541, that Court has also made clear that First Amendment doctrine specifically
permits litigants to make facial challenges based on overbreadth, see, e.g., Stevens,
559 U.S. at 473, 130 S. Ct. at 1587 (“In the First Amendment context, however, this
Court recognizes a second type of facial challenge, whereby a law may be invalidated
as overbroad if a substantial number of its applications are unconstitutional, judged
in relation to the statute’s plainly legitimate sweep.” (emphasis added) (citation and
internal quotation marks omitted)); Williams, 553 U.S. at 292, 128 S. Ct. at 1838
(“According to our First Amendment overbreadth doctrine, a statute is facially
invalid if it prohibits a substantial amount of protected speech.”(emphasis added)).
The Court has even noted that such a challenge is permitted when the challenger’s
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own conduct would clearly fall within the scope of the statute’s prohibition and the
claim is based only on how that statute might apply to the activity of others. See, e.g.,
Humanitarian Law Project, 561 U.S. at 20, 130 S. Ct. at 2719 (“[A] plaintiff whose
speech is clearly proscribed cannot raise a successful vagueness claim under the Due
Process Clause of the Fifth Amendment for lack of notice. And he certainly cannot
do so based on the speech of others. [But s]uch a plaintiff may have a valid
overbreadth claim under the First Amendment . . . .”). In light of this precedent
permitting such challenges, and for the reasons noted above, I would hold that the
statute at issue here, N.C.G.S. § 14-202.5, is facially overbroad and therefore
unconstitutional, regardless of its application in this specific case.
For the foregoing reasons, I conclude that N.C.G.S. § 14-202.5 is both
insufficiently narrowly tailored to satisfy intermediate scrutiny and facially
overbroad under the First Amendment. Because I disagree with the majority’s
conclusions to the contrary, I respectfully dissent.
Justice BEASLEY joins in this opinion.
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