Written by attorney Lynn Norton-Ramirez

Constitutional challenges to laws barring registered sex offenders from social network web sites

North Carolina and other states have enacted laws prohibiting persons who are registered sex offenders from creating or maintaining a commercial social networking web site. In North Carolina, social networking web site is defined very broadly and seeks to prohibit on-line social interaction for the purposes of "friendship, meeting other persons or informational exchanges." (N.C.G.S. 14-202.5)

In the 21st century, social networking sites have altered the way people communicate, transmit information and purchase goods. As statutes increasingly limit and track the physical mobility of a sex registrant, the internet serves as a crucial link to friends, family and the outside world. These statutes must be challenged.

Suggested challenges:

  1. An impermissible abridgement to the defendant's First Amendment rights to free speech and freedom of association. The state must demonstrate a "compelling state interest" when infringing on fundamental rights. Narrow tailoring and substantive due process protects defendants from arbitrary government actions that lack reasonable justification.

  2. The statute is unconstitutionally vague and overbroad. Vagueness applies when the statute requires that persons of common intelligence must guess at its meaning and are unsure as to its application. A law is overbroad is when constitutionally protected activity is criminalized along with unprotected activity. With overbreadth challenges, the defendant can argue the unconstitutionality of the law as applied to the rights of others, not only as to the individual defendant.

  3. Ex Post Facto. Ex post facto laws punish acts committed before the social network law existed. In the case of Facebook, a defendant could have set up the page before the law was enacted but the page would continue to be "maintained" by posts of "friends" even if the defendant no longer went on the site. But if the defendant entered the site, even to terminate the account, he would be in violation of the law.

  4. Abridgement of freedom of religion. Although the law does not specifically address religious websites, certain sites involve a social component such as the discussion of religious ideas or socialization between persons with similar religious viewpoints. These sites often fall within the social network definition

  5. Federal Preemption. Regulations of the internet are within the scope of the federal government's desire to "occupy the field," thus precluding state legislation.

  6. Commerce clause violation. Internet retailers such as Amazon have subpages which permit the user set up a personal profile and exchange ideas. Other internet retailers are accessible as advertisers within other social networking sites such as Facebook. These businesses would be off-limits to sex offenders.

This list is not meant to be exhaustive but food for thought. Challenge these sites in pretrial motions to dismiss. Just because a person is a registered sex offender, he still retains constitutional protections and does not become a separate second class of citizen.

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