Protecting Children from Sexual Abuse, or Suppressing Free Speech: Packingham v. North Carolina

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By Joscelyn Solomon; Staff Member (Vol. 16)

Imagine this: you check your 13-year-old daughter’s Facebook account, and you notice that she has received messages from a boy named John Doe. According to his Facebook page, the boy is 13 years old and attends middle school in a neighboring county. You continue to read through the messages, and you see that the boy has invited your daughter to the park after school to engage in sexual activities. You message him back, pretending to be your daughter, and you tell him that you will be there to meet him the next day. He tells you what he will be wearing so that you can easily identify him. One day later, you go to the address that John provided to discover a man who looks to be in his mid-thirties sitting alone on a bench. He is dressed in the blue jeans and UNC sweatshirt that John said that he’d be wearing. You call the police, and they meet you at the scene. “John” is later apprehended, and it is revealed that he is a registered sex offender who has pleaded guilty to taking indecent liberties with a child. His name is not John Doe, and it is later disclosed that “John” planned to kidnap and sexually abuse your daughter.

After his conviction, you speak to the NC Legislature to advocate for a law that prohibits registered sex offenders from having access to a social networking website which the offender knows permits minors to become members. North Carolina hears your concern and enacts a statute making it a felony for a registered sex offender to gain access to a number of websites, including Facebook and LinkedIn.

Now imagine an 18-year-old boy who decides to have sex with his 14-year-old girlfriend over his birthday weekend. The girl’s father finds out, and he goes to the police. Because of the girl’s age, the boy is forced to register as a sex offender. He has never been in trouble before and has plans to go to college. His new status as a registered sex offender brings him nothing but rejection letters from colleges and workplaces. He decides to do some job searching and networking on LinkedIn and Facebook only to discover that he is banned from those websites because of the new statute.

Both scenarios speak of a registered sex offender. Although their offenses are very different, both offenders are prohibited from using a wide range of websites where minors have access, regardless of intent.  Is this suppression of speech justified?

First Amendment Rights Implicated in Packingham v. North Carolina

In Packingham v. North Carolina, the petitioner, Lester Gerard Packingham, challenged N.C. Gen. Stat. § 14-202.5, which makes it a felony for a registered sex offender “to access a commercial social networking Website where the sex offender knows that the site permits minor children to become members or to create or maintain personal web pages.” Addressing the issue of whether the law is permissible under the First Amendment’s Free Speech Clause, the Supreme Court reversed the NC Supreme Court’s decision and held that the statute is unconstitutional because “placing this set of websites categorically off limit from registered sex offenders prohibits them from receiving or engaging in speech that the First Amendment protects and does not appreciably advance the State’s goal of protecting children from recidivist sex offenders.”

Protection of Free Speech v. Protection from Sexual Abuse of Minors

The Supreme Court essentially decided that the use of social media is a constitutional right, even for registered sex offenders. In today’s society, social media sites like Facebook and Twitter are used to incite discussions about politics and religion and to connect with friends and family. Facebook can also be used as a resource to find jobs and networking opportunities. Although it is clear that the State has a legitimate interest in protecting children from sexual abuse, the statute is not “narrowly tailored” enough to protect that interest while protecting First Amendment rights. The North Carolina Court of Appeals noted that even if the petitioner couldn’t access Facebook, he could access “adequate alternative means of communication.” However, the statute is so broad, the majority opinion pointed out, that former sex offenders may be prohibited from accessing websites like Washington Post, WebMD, and Amazon.

In a digital age where 29% of online adults use LinkedIn to find employment, and 79% of Internet users use Facebook, prohibiting access to such websites would be a serious restriction of free speech.  Supporters of the law contend that it doesn’t regulate the actual speech of the sex offender, but rather the time, place, and manner of the speech, which is arguably no different than laws that restrict sex offenders from being within a certain proximity to school grounds. Justice Alito addressed this concern in his concurrence by noting, “if the entirety of the internet or even just ‘social media’ sites are the 21st century equivalent of public streets and parks, then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offender.”

With more than 800,000 sex offenders nationwide, it is important that we protect children from receiving direct messages from registered sex offenders. Perhaps Facebook should increase the age requirement for its users, or North Carolina could create a law that requires sex offenders to indicate their criminal status on their social media websites. Whatever the solution may be, it cannot be a law that abridges the First Amendment rights of registered sex offenders by prohibiting them from accessing the virtual world of the Internet. The potential for access by minors does not rise to a level that can survive the challenge of strict scrutiny through which the First Amendment retains its power.

First Amendment Newsflash 10/2-10/15

Welcome to First Amendment Newsflash, the First Amendment Law Review’s bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.


The Supreme Court is back in session! Stay tuned!

Court News

A Texas high school senior is suing the Cy-Fair school district after claiming she was suspended from school for not standing for the Pledge of Allegiance.

The Reporters Committee for Freedom of the Press and a coalition of 20 media organizations filed an amicus brief asking the 9th Circuit to rehear a case, after the 9th Circuit allowed the government to prohibit wire or electronic communication service providers, like social media companies, from disclosing information about National Security Letters they receive requesting information about subscribers.

A federal judge ruled that the local transit authority violated the First Amendment when it refused to allow the union representing bus drivers to buy advertisements on buses in Spokane, Washington.

A federal judge ruled that an income tax exemption for housing for members of the clergy violates the First Amendment Establishment Clause because it benefits religious leaders and no one else.

A Texas judge ordered a former lawyer to pay a local media company’s legal fees arising from a defamation lawsuit under provisions of a state law enacted to protect First Amendment rights by discouraging frivolous lawsuits.

In newly filed lawsuits on behalf of the city of Charlottesville, local businesses and neighborhood associations accuse the organizers of the August “Unite the Right” rally, as well as private militia groups and their leaders, of violating Virginia law by organizing and acting as paramilitary units.

Two federal district courts ruled that the First Amendment does not allow the Food and Drug Administration (FDA) to prevent manufacturers from providing truthful information about their products to doctors.

The California Attorney General, the Washington Attorney General, and the ACLU filed suits alleging that the Trump administration’s rules widening the range of employers and insurers that can invoke religious or moral beliefs to avoid the Affordable Care Act requirement that contraceptives be covered by insurance violates the First Amendment by favoring certain religious views.

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President Trump Promised to “Totally Destroy” the Johnson Amendment: Did He?

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By Trey Bright; Staff Member (Vol. 16)

On February 2, 2017, President of the United States, Donald J. Trump, delivered a speech at the National Prayer Breakfast in Washington, D.C. in which he doubled down on the GOP platform’s commitment to expanding the First Amendment rights of houses of worship. President Trump assured the audience of religious leaders that he would make good on his campaign promise to “totally destroy” the Johnson amendment, a provision of the U.S. tax code, which allows “our representatives of faith to speak freely and without fear of retribution.”

What is the Johnson Amendment?

Following President Trump’s speech, The New York Times  described the Johnson Amendment as:

[O]ne of the brightest lines in the legal separation between religion and politics. Under the provision, which was made in 1954, tax-exempt entities like churches and charitable organizations are unable to directly or indirectly participate in any political campaign on behalf of, or in opposition to, any candidate. Specifically, ministers are restricted from endorsing or opposing candidates from the pulpit. If they do, they risk losing their tax-exempt status.

Controversy and Questions of Constitutionality

Following President Trump’s remarks, talks of an executive order, proposed legislation, and the impacts that each could have began to swirl throughout Washington. Accompanying this dialogue was a mixed array of support, concern, and questions of constitutionality.

Proponents of the efforts to repeal the Johnson Amendment argue that it violates the First Amendment protections of free speech and free exercise afforded to houses of worship – though the courts have disagreed on this point for more than half a century. Meanwhile, opponents of the efforts to repeal fear that it could encourage the creation of sham nonprofits to funnel money into politics and corrupt the very purpose of churches.

Talks of the proposed repeal raised serious concerns over its impact on the separation of church and state doctrine; but concerns of this type of Establishment Clause violation are largely dependent upon the substance of the policy itself.

In Walz v. Tax Commission of the City of New York, the Supreme Court established that a tax exemption equally available to both secular and religious nonprofit organizations did not violate the Establishment Clause. Further, the Walz Court suggested that such an exemption strictly for religious organizations would be an impermissible religious preference in violation of the Constitution. Similarly, this sort of naked preference for religious groups was held to be a violation of the Establishment Clause in Texas Monthly, Inc. v. Bullock, where the Court struck down a Texas statute exempting only religious publications from state sales taxes.

Under this line of case law, it is clear that a repeal of the Johnson Amendment only as it pertains to restricting the political activities of religious organizations would be held unconstitutional. That being said, were the repeal to apply to nonprofits across the board, it would be constitutionally acceptable – proposing only a question of policy.

The Executive Order

Some thought a more clear answer as to how a repeal would be implemented would be addressed on May 4, 2017, as President Trump signed an executive order in the White House Rose Garden amidst a crowd of activists and religious leaders. As he signed, the president promised that the order would “prevent the Johnson Amendment from interfering with your First Amendment rights.” However, despite this promise and the aforementioned vow to “totally destroy” the Johnson Amendment, key questions remained unanswered.

Attorneys for the American Civil Liberties Union (ACLU) and the Human Rights Campaign expressed a plan to immediately challenge the executive order. The organizations feared that the order would undermine women’s health care in the name of religion and could enable religious discrimination. But upon release of the order, the need for such challenges came into question as activists from both ends of the spectrum suggested that the executive order did little to nothing of substance. In fact, the ACLU went as far as to say that the signing of the order was simply “an elaborate photo-op with no discernible policy outcome.”

The executive order vaguely reads: “to the extent permitted by law,” the Department of the Treasury is not to take adverse action against any individual or religious organization on the basis of speech about political issues where similar speech has, “consistent with law,” not ordinarily been treated as participation on behalf of or against a candidate in a political campaign. In other words, the executive order is essentially legalese for “carry on.”

Even conservative groups expressed their disappointment with the executive order, appreciating the symbolism and the optics but acknowledging that the vague language of the order leaves President Trump’s campaign promise unfulfilled.

What’s Next?

Of course, the lackluster executive order isn’t the end of the debate over the Johnson Amendment. President Trump, and others in the Republican leadership, have suggested that a Congressional act on the subject is forthcoming. In any case, if conservatives are to legitimately make good on their promise to repeal the Johnson Amendment, they clearly have more to do and must do so without imposing the sort of naked religious preference mentioned herein.



First Amendment Newsflash 9/18-10/1

Welcome to First Amendment Newsflash, the First Amendment Law Review’s bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.



Court News

A federal magistrate judge ruled that a homeless encampment in Chicago did not qualify as a First Amendment-protected statement.

A panel of the 9th Circuit asked for amicus briefs considering whether a federal law criminalizing encouraging or inducing illegal immigration violates the First Amendment.

The 9th Circuit granted a preliminary injunction against San Francisco’s ordinance requiring health warnings on sugary drinks, such as pop.

A school lunch aide accused of illegally sexting a student has filed a writ of certiorari with the Supreme Court, arguing that the statute under which she was charged is unconstitutionally broad.

A federal judge dismissed two videographers’ religious freedom lawsuit challenging the Minnesota Human Rights Act, which barred the videographers from denying services for same-sex weddings.

HBO has asked a West Virginia state court to dismiss coal baron Robert Murray’s defamation lawsuit involving the John Oliver show.

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FALR’s ‘Distorting the Truth’ Symposium to Bring Together Foremost Scholars for Interdisciplinary Look at Fake News


By: Lindsie Trego, Symposium Editor (Vol. 16)

Only 38 days separate us from FALR’s 2017 Symposium: “Distorting the Truth: ‘Fake News’ & Free Speech.” As co-symposium editor, I wanted to take this opportunity to talk a little more about what we at FALR have planned for the symposium.

Fake news is a ubiquitous topic in today’s political and cultural environment. A quick Google search for the term reveals more than 8 million results. But what does “fake news” mean? What impact does it have on our culture? Does the law have a role to play?

When my co-editor John and I were thinking through how we wanted the symposium to fit into this conversation, we knew we wanted to focus on the law, but we also wanted to recognize the interdisciplinary nature of the topic, as it certainly hasn’t only dominated the legal news. Symposia often do the important work of bringing together foremost scholars to impact how the legal community thinks about an issue. But in the best case scenario, legal scholars, social scientists, and professionals converge to inform each other and impact how one another think about an issue.

Because fake news isn’t just a legal issue, “Distorting the Truth” will bring together eminent legal scholars such as Richard Hasen from UC Irvine and Helen Norton from University of Colorado; social scientists such as Deen Freelon from UNC and Emily Thorson from Syracuse; and practitioners such as Angie Holan from PolitiFact and Ashley Messenger from NPR.

The diversity of our panelists is sure to foster conversations that will examine the law while also considering broader contexts, better informing the symposium as a whole. We are so excited to see the lively debate that is sure to ensue!

Over the next few weeks, we will feature each of our speakers on Twitter and Facebook to give you a glimpse of what to expect from the symposium. Be sure to follow us to keep up, and check out the full list of speakers here.

You only have 30 days left to purchase in-person tickets for the symposium, which include lunch catered by the Carolina Club! And there are only 36 days left to purchase tickets for the live webcast of the symposium! Grab them while they’re here!


First Amendment Newsflash 9/4-9/17

Welcome to First Amendment Newsflash, the First Amendment Law Review’s new bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.



Court News

Michigan State University has been sued in federal court on First Amendment grounds for denying rental space for Richard Spencer to speak.

An Ohio man convicted of failing to tell his sexual partner that he is HIV-positive is arguing before the Ohio Supreme Court that the state law requiring HIV disclosure violates his First Amendment rights.

Alabama Supreme Court Justice Tom Parker argued in federal court that some restrictions on judges’ speech violate the First Amendment.

Three Texas churches have sued FEMA for allegedly discriminating based on religion in its provision of disaster relief.

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First Amendment Newsflash 8/21-9/3

Welcome to First Amendment Newsflash, the First Amendment Law Review’s new bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.



Court News

San Francisco State University argued in federal court that it could not prevent certain acts of anti-semitism on campus without unconstitutionally curbing freedom of speech.

In a case relating to a police unit’s blanket ban on speaking to those outside of the department about police matters, the Ninth Circuit ruled that such bans violate the First Amendment.

A New Jersey municipal court judge found a woman not guilty on harassment charges brought against her for posting implications on Facebook that two individuals had killed a bear. In his ruling, the judge said that the First Amendment prohibits a guilty finding in harassment cases involving public, non-directed speech.

The Second Circuit ruled that a New York town ordinance that restricted day laborers from soliciting work on the streets is a content-based restriction in violation of the First Amendment.

The Third Circuit ruled that TSA agents cannot be sued for First Amendment retaliation, due to their important role in protecting national security.

Utah violated a theater’s First Amendment rights when it threatened the theater’s liquor license after the theater showed the R-rated Deadpool while serving alcohol.

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