In 2002, a 21-year-old college student in North Carolina named Lester Gerard Packingham had consensual sex with a 13-year-old girl. He was thereafter convicted, after pleading guilty, of “taking indecent liberties with a child.” As the result of his conviction Packingham was required, potentially for the next 30 years, to register as a sex offender under North Carolina law. Approximately 8 years later, in April 2010, he obtained the dismissal of a traffic citation in municipal court. Exhilarated by his unexpected victory, and using the handle “J. R. Gerard,” Packingham posted a comment on his Facebook page stating, in part: “No fine, no court costs, no nothing spent . . . Praise be to GOD, WOW! Thanks JESUS!” (We’ve all had that feeling, right?)
Upon discovering Packingham’s post on Facebook, and apparently unamused by this miscarriage of justice and heresy, a local law enforcement officer set out to investigate and ascertain the identity of “J. R. Gerard.” After examining the docket of the municipal court and comparing the Facebook profile photo of J. R. Gerard with a photo of Packingham on North Carolina’s sex offender registry, the officer confirmed that J. R. Gerard was actually Packingham, a registered sex offender. The officer then secured a warrant to search Packingham’s home and thereby obtained evidence leading to Packingham’s indictment for violation of a North Carolina statute.
The statute in question made it a felony offense for registered sex offenders to access online “social media” sites. Following denial of his motion to dismiss the indictment on the ground that the statute violated the Free Speech Clause of the First Amendment, Packingham was convicted after a trial by jury in Durham County Superior Court. This conviction was reversed by the North Carolina Court of Appeals, which sustained Packingham’s constitutional challenge.1 However, on further appeal by the state of North Carolina, Packingham’s conviction was reinstated by the Supreme Court of North Carolina, which ruled the statute “constitutional in all respects.”2
The U.S. Supreme Court granted review, and on June 19, 2017, in Packingham v. North Carolina, the Court invalidated the statute under the Free Speech Clause of the First Amendment.3 Characterizing the case as “one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet,”4 the Court assumed arguendo that the statute was “content-neutral” and therefore subject to “intermediate scrutiny” (a more deferential form of First Amendment scrutiny that examines whether a statute is “narrowly tailored to serve a significant governmental interest”).5 The Court readily acknowledged that a “significant governmental interest” was presented by the state, as the Court understandably found “sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.”6 On the other hand, the Court removed all doubt about whether a social media site, even when privately hosted, qualifies as a “public forum” entitled to core First Amendment protection against governmental interference. Thus, in terms not easily rescinded, the Court heralded the internet as “the modern public square” wherein one with an internet connection is enabled to “become a town crier with a voice that resonates farther than it could from any soapbox.”7 Ultimately, after observing that “a valid governmental interest cannot, in every context, be insulated from all constitutional protections,”8 and after accurately identifying the statute as an outright ban (as to registrants) that sought to “suppress lawful speech as the means to suppress unlawful speech,”9 the Court declared the statute overbroad and unconstitutional.
Two comments by the Court, albeit stated in dicta, warrant further mention. First, the Court noted that it found “troubling” the fact that the statute imposed “severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system.”10 Second, the Court stated that it “presumed” the First Amendment “permits a state to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.”11
The Potential Impact of Packingham on Texas Criminal Law
North Carolina is one of a very few states to have enacted a statute that outright banned registered sex offenders (who are “no longer subject to the supervision of the criminal justice system”) from accessing online social media sites.12 The vast majority of states seeking to regulate registrants’ access to the internet, including Texas, apparently recognized that such a bold move would result in relatively certain constitutional condemnation. Instead, Texas and these other states, with encouragement from federal authorities (as described below), elected to ignore the ancient legal maxim expressed by Edward Coke: quando aliquid prohibetur fieri ex directo et per obliquum.13 Literally, this phrase means “any time anything is prohibited to be done directly it is also prohibited to be done indirectly.”14 In other words, what Texas and other states have attempted to accomplish “indirectly,” which the state of North Carolina unwisely ventured to do “directly” to Mr. Packingham (and many others in North Carolina), is to totally banish sex offender registrants from accessing online social media sites. The statutory vehicle to obtain this objective indirectly can be found in “Online Identifier” reporting requirements that are usually made a component of sex offender registration. In Texas, the Online Identifier requirement appears in Article 62.0551 of the Texas Code of Criminal Procedure; and for reasons discussed hereinafter, the decision in Packingham may prove an important first step towards constitutional invalidation of Article 62.0551 under the First Amendment.15
The Origin of Texas’ Online Identifier Requirement
The federal Sex Offender Registration and Notification Act (SORNA), which was enacted as part of the Adam Walsh Child Protection and Safety Act of 2006, gave the states powerful financial incentives to maintain a sex offender registry. Title 42 United States Code Section 16912 provided that each state shall maintain a jurisdiction-wide sex offender registry, and Section 16925(a) provided that a nonconforming state would not receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the state under the federal Omnibus Crime Control and Safe Streets Act of 1968. As originally enacted, Section 16914(a) required states to include in their sex offender registries information such as a registrant’s name and address, as well as “[a]ny other information required by the Attorney General of the United States.” On July 2, 2008, in accordance with the authority conferred by Section 16914(a), U.S. Attorney General Michael Mukasey (while serving under President George W. Bush) issued guidelines requiring states to collect sex offenders’ “internet identifiers” or “internet addresses.”16
In compliance with the foregoing federal mandate issued by the U.S. Attorney General on July 2, 2008, states began enacting statutory provisions requiring sex offenders to provide their “online identifiers” as part of their sex offender registration requirement. Texas swiftly followed suit and enacted Article 62.0551 in 2009.17
The Texas Statutory Scheme
Article 62.0551, which carries with it the threat of felony punishment for noncompliance, provides:
If a person required to register . . . changes any online identifier included on the person’s registration form or establishes any new online identifier not already included on the person’s registration form, the person, not later than the later of the seventh day after the change or establishment . . . shall report the change or establishment to the person’s primary registration authority in the manner prescribed by the authority.
Although definitions vary from state to state, Texas’ definition of the term “online identifier” appears in Article 62.001 (12) and provides:
[An] “[o]nline identifier” means electronic mail address information or a name used by a person when sending or receiving an instant message, social networking communication, or similar Internet communication or when participating in an Internet chat. The term includes an assumed name, nickname, pseudonym, moniker, or user name established by a person for use in connection with an electronic mail address, chat or instant chat room platform, commercial social networking site, or online picture-sharing service.
Finally, and most significantly for purposes of constitutional analysis, Article 62.0061(a) provides:
“On request by a commercial social networking site, the [Texas Department of Public Safety] may provide to [a] commercial social networking site . . . all public information that is contained in the database maintained under [the general registration statute]” as well as “any online identifier established or used by a person who uses the site, is seeking to use the site, or is precluded from using the site.”
Apparently to further clarify legislative purpose, Article 62.0061(c) provides that a “commercial social networking site” is expressly authorized to access and use online identifier information maintained by the Texas Department of Public Safety to “prescreen” persons seeking to access their social media sites, and use that information to “preclude” registrants from accessing their social media sites.
In accordance with Article 62.0061(b), the Texas Department of Public Safety has adopted rules governing the manner by which “commercial social networking sites” may obtain a registrant’s online identifiers.18 Under Department regulations, conditioned upon a social media site qualifying as a commercial social networking site as defined by statute,19 and provided it is approved as such by the Department, social media sites “will be assigned a user account and furnished instructions to access . . . online identifiers maintained by the [D]epartment.”20
Will the Texas Online Identifier Scheme Survive First Amendment Scrutiny After Packingham?
Now that the U.S. Supreme Court has invalidated on First Amendment free-speech grounds North Carolina’s ban prohibiting access to social media sites by registered sex offenders (who are not on parole or community supervision), a constitutional question arises whether the state of Texas may indirectly accomplish the same objective by simply: 1) requiring registrants, under threat of felony punishment, to disclose their online pseudonyms to the Department of Public Safety; and by 2) directing the Department of Public Safety to disclose this otherwise unavailable information to social media sites so they can ban registrants from expressing their ideas and communicating with others on those sites. Settled First Amendment law strongly suggests Texas cannot do so.
As previously mentioned, although the issue was once somewhat unsettled, the Supreme Court in Packingham has now made clear that social media sites, even when privately hosted, qualify as “public forums” entitled to core First Amendment protection against governmental interference.21 Assuming that a First Amendment challenge to Texas’ online identifier scheme were subjected to “intermediate scrutiny” (to determine whether it is “narrowly tailored to serve a significant governmental interest”),22 the outcome of such a challenge would depend on the nature of the free-speech interests held by registrants—and how narrowly Texas’ regulation is tailored in relation to those interests.
The constitutionality of online identifier statutes is a question presently being litigated in state and federal courts across the nation. The most promising legal theory for registrants challenging these statutes has been the claim that online identifier statutes violate a registrant’s First Amendment right to “anonymous” speech. More than two decades ago the U.S. Supreme Court ruled that the First Amendment protects a person’s right to exercise freedom of speech “anonymously.” In this connection, the Court noted:
[A]n author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of publication, is an aspect of the freedom of speech protected by the First Amendment.23
And as the Court further explained:
Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.24
In Packingham the Court provided clues concerning the line of demarcation between what it would and would not perceive to be a narrowly tailored statute in this context. It acknowledged the First Amendment would likely “permi[t] a state to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.”25 Conversely, it ruled that a statute cannot “suppress lawful speech as the means to suppress unlawful speech.”26 Within these guideposts, however, a defense of Texas’ online identifier statute resting on the argument that the statute is narrowly tailored to “prohibit a sex offender from engaging in conduct that often presages a sexual crime” would not likely be persuasive. As observed by the Texas Court of Criminal Appeals when addressing the constitutionality of another of Texas’ online “sex offender” statutes, Article 62.0551 cannot be deemed to advance this purpose because, under such an interpretation, it is aimed at speech that is “either already prohibited by other statutes (such as obscenity, distributing harmful material to minors, solicitation of a minor, or child pornography) or is constitutionally protected.”27
One “significant governmental interest” assignable to Article 62.0551, and perhaps the only one, is that it operates to advance the state’s interest in investigating “completed” crimes. As discussed below, however, Article 62.0551, as written, is unlikely to be viewed as narrowly tailored to accomplish that objective.
Online Identifier Statutes in Other States
Examination of online identifier statutes enacted by other states reveals there is no consensus concerning what, if any, “online identity” information reported to a governmental registering authority, by a registrant, may be disclosed to others. These “others” might include law enforcement authorities not responsible for receiving registration information or so-called “social media” entities in the private sector. Depending on the state, online identifier statutes differ on whether such disclosures must be confined to the purpose of investigating, with “reasonable suspicion” or perhaps “probable cause,” the commission of a criminal offense. Some statutes are silent, or ambiguous, on this question. However, it appears that every court that has reviewed the constitutionality of an “online identifier” statute has ruled that “investigation of new sex offenses,” or “apprehension of sex offenders suspected of new crimes,” constitutes “a substantial governmental interest.” Thus, the outcome of most challenges depends upon whether, in view of the First Amendment right to “anonymous speech,” a particular online identifier statute “burdens substantially more speech than is necessary to further the government’s legitimate interests.”28 The two decisions below, from Utah and California, illustrate the constitutional analysis that would likely apply to any challenge to Texas’ Article 62.0551 in this context.
Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010):
In this case Utah’s statute provided that online identifier information could be disclosed to third parties “to assist in investigating kidnapping and sex-related crimes, and in apprehending offenders.” However, the statute also authorized, more ambiguously, disclosure of online identifier information to third-party private entities if “use of the record . . . produces a public benefit that is greater than or equal to the individual privacy right that protects the record.”29 In Doe v. Shurtleff, after considering the broader statutory scheme surrounding Utah’s online identifier statute, the Court “narrowly” interpreted Utah’s reporting statute as intended only to authorize disclosure of online identifiers for “law enforcement purposes” confined to “aiding the police in solving crimes.”30 By this means the statute was rescued from invalidation and was ruled not to violate the constitutional right to anonymous speech.31
Doe v. Harris, 772 F.3d 563 (9th Cir. 2014):
Prior to being invalidated by the U.S. Court of Appeals for the Ninth Circuit, California’s online identifier statute provided in relevant part:
Notwithstanding any other provision of law . . . any designated law enforcement entity may provide information to the public about a person required to register as a sex offender pursuant to Section 290, by whatever means the entity deems appropriate, when necessary to ensure the public safety based upon information available to the entity concerning that specific person.32
To avoid constitutional invalidation the Attorney General of California sought to persuade the Ninth Circuit that the statute was susceptible to a narrowing construction. Thus, notwithstanding the literal terms of the statute, she argued the statute required “specific and articulable facts causing the officer to suspect that some activity relating to crime has taken place or is occurring or about to occur” before online identifier information could lawfully be disclosed to third-parties.33 The Ninth Circuit was unpersuaded. Rather, as one ground for declaring the California’s statute unconstitutional, the Court in Doe v. Harris ruled that the statute, by the plain meaning of its terms, unconstitutionally “chilled” anonymous speech “because it too freely allow[ed] law enforcement to disclose sex offenders’ Internet identifying information to the public.”34 In the Court’s view, the statute too vaguely permitted law enforcement to “provide information to the public about a person required to register as a sex offender,” including a registrant’s online identifiers, whenever law enforcement deemed such a disclosure to the public “necessary to ensure the public safety.”35
By way of legislative response, the California Assembly amended its former online identifier statute to now provide:
[A] designated law enforcement entity shall only use an Internet identifier, or release that Internet identifier to another law enforcement entity, for the purpose of investigating a sex-related crime, a kidnapping, or human trafficking;” and,
A designated law enforcement entity shall not disclose . . . an Internet identifier . . . to the public or other persons, except as required by court order.36
Notwithstanding a “horizontal” split among several courts of last resort across the nation, shortly before its summer recess the U.S. Supreme Court denied certiorari in a case raising precisely the issue discussed in this paper. See People v. Minnis, 67 N.E.3d 272 (Ill., 2016), cert. denied, __U.S.__, No. 16-8052 (June 26, 2017).37 However, given Justice Frankfurter’s oft-cited observation that the Supreme Court “has rigorously insisted that such a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review,”38 I do not view the denial in Minnis dispositive.
Although there does not appear to be any judicial decisions addressing the constitutionality of Texas’ online identifier statute, comparison of the Texas statute to the decisions discussed above reveals it is seriously vulnerable to constitutional challenge, at least as to persons who are no longer on community supervision or parole.39 First, Texas’ statute allows disclosure of a registrant’s online identifier information to private third parties for reasons wholly unrelated to investigating a completed crime, or a future crime for which there is individualized reasonable suspicion. This was largely the defect that persuaded the Ninth Circuit Court of Appeals in Doe v. Harris to invalidate, and the ground upon which the Tenth Circuit Court of Appeals in Doe v. Shurtleff sustained against First Amendment challenge, the online identifier statutes those courts considered. Furthermore, Texas’ statute does not lend itself to a “narrowing” construction that would authorize disclosure of a registrant’s online identifiers only for “law enforcement purposes” confined to “aiding the police in solving crimes,” which was what saved Utah’s statute from constitutional invalidation in Doe v. Shurtleff.
Rather, Texas’ broad disclosure provision, set out above, is manifestly an indirect mechanism designed to cause the “outright” elimination of a registrant’s ability to engage in public communications on the internet. The legislative assumption (and a likely correct assumption at that) appears to be that a third-party website, such as Facebook, upon discovering a person is a registrant as the result of the state’s disclosure, will itself ban the person from its public forum.40 Thus, Texas’ statutory scheme accomplishes indirectly what the statute in Packingham unconstitutionally accomplished directly: an “outright ban” on First Amendment speech. The Texas statute, like the North Carolina statute found unconstitutional in Packingham, should encounter the same fate. Quando aliquid prohibetur fieri ex directo et per obliquum.
1. State v. Packingham, 748 S.E.2d 146 (N.C. App. 2013).
2. State v. Packingham, 777 S.E.2d 738, 741 (N.C. 2015).
3. Packingham v. North Carolina, No. 15-1194, __U.S.__, 137 S.Ct. 1730 (June 19, 2017).
4. Packingham v. North Carolina, supra, 137 S.Ct. at 1736.
5. Id., 137 S.Ct. at 1736.
6. Id., 137 S.Ct. at 1736.
7. Id., 137 S.Ct. at 1737.
8. Id., 137 S.Ct. at 1736.
9. Id., 137 S.Ct. at 1738.
10. Id., 137 S.Ct. at 1737. This comment by Justice Kennedy, the author of the Court’s opinion in Packingham, will likely been seen by many “sex offenders,” their family members, and supporters as an attempt by Justice Kennedy to ameliorate the extremely “severe” harm caused by a demonstrably false factual statement he twice published in past opinions regarding sex offenders. In his plurality opinion in McKume v. Lile, 636 U.S. 24, 33 (2002), and again a year later when writing for the majority in Smith v. Doe, 538 U.S. 84, 103 (2003), Justice Kennedy, wholly without scientific or other evidentiary support, declared ipse dixit that sex offenders have a “frightening and high” rate of recidivism. As subsequently chronicled by two scholars, the origin of this still-enduring but false myth is traceable in part to a political speech given by Texas’ very own Florence Shapiro, a former state senator and mayor of Plano, Texas. See Ellman & Ellman, “Frightening and High”: The Supreme Court’s Crucial Mistake About Sex Crime Statistics, 30 Const. Comm. 495, 500 n. 19 (2015), and accompanying text.
11. Id., 137 S.Ct. at 1737.
12. An Indiana statute similar to the “ban” presented in Packingham was ruled unconstitutional by an intermediate appellate court in Harris v. State, 985 N.E.2d 767 (Ind.App. 2013). The Court of Appeals in Harris v. State deployed virtually the same First Amendment reasoning later applied by the U.S. Supreme Court in Packingham.
13. 2 Edward Coke, The First Part of the Institutes of the Laws of England, *223b (circa 1628)(1st American ed., 1853)(a/k/a “Coke on Littleton”).
14. This maxim, in slightly different form, has been invoked from the earliest days of the U.S. Supreme Court. See, e.g., Smith v. Turner, 48 U.S. 283, 458 (1849)(Grier, J., concurring)(“It is a just and well-settled doctrine established by this court, that a state cannot do that indirectly which she is forbidden by the Constitution to do directly”).
15. All references hereinafter to “Articles” in this paper are intended to refer to Articles contained in the Texas Code of Criminal Procedure.
16. See Doe v. Harris, 772 F.3d 563, 569 n. 1 (9th Cir. 2014), citing National Guidelines for Sex Offender Registration, 73 Fed.Reg. 38030, 38055 (July 2, 2008); see also 42 U.S.C. Section 16915a(a)(requiring states to obtain registrants’ internet identifiers “of any type that the Attorney General determines to be Appropriate”).
17. Acts 2009, 81st Leg., R.S., Ch. 755 (S.B. 689), Sec. 4, eff. September 1, 2009.
18. See 37 Tex.Admin. Code, Pt. 1, ch. 37, Rule 37.2.
19. Article 62.0061(f).
20. Article 62.0061(e).
21. Id., 137 S.Ct. at 1737 (characterizing the internet as “the modern public square” wherein one with an internet connection is enabled to “become a town crier with a voice that resonates farther than it could from any soapbox”). The First Amendment has been interpreted to provide greater or lesser protection depending on whether the speech at issue is expressed in a “public” or in a “private” forum, respectively. Prior to Packingham, the Supreme Court had implied that when accessed from one’s home the internet constitutes a “public forum” for purposes of First Amendment analysis. Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997). However, the Court had also ruled that when the internet is accessed from a public library, the “public forum” doctrine does not apply. United States v. American Library Assoc., 539 U.S. 194, 205–207 (2003)(plurality opinion per Rehnquist, C. J., joined by O’Connor, Scalia, and Thomas, JJ.); accord, id., 539 U.S. at 215 (Breyer, J., concurring in judgment). Some lower courts had already ruled that an internet website remains a “public forum” even when operated by a private entity that retains discretion to “restrict, edit, delete or prohibit posts.” Piping Rock Partners v. David Lerner Associates, 946 F.Supp.2d 957, 975 (N.D.Cal. 2013)(listing appellate court decisions).
22. Id., 137 S.Ct. at 1736; see also Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980)(ruling that under “intermediate scrutiny” a “content-neutral” statute will be upheld against First Amendment challenge if it: 1) “serves a substantial governmental interest”; and 2) is “narrowly drawn” to serve the identified governmental interest “without unnecessarily interfering with First Amendment freedoms”).
23. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 342 (1995).
24. McIntyre v. Ohio Elections Commission, supra, 514 U.S. at 357.
25. Id., 137 S.Ct. at 1737.
26. Id., 137 S.Ct. at 1738.
27. Ex Parte Lo, 424 S.W.3d 10, 19–20 (Tex.Crim.App. 2013)(invalidating Texas’ former online solicitation statute).
28. Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989).
29. Utah Code Ann., Sections 77-41-103(C), and 63G-2-206(6)(b).
30. Doe v. Shurtleff, 628 F.2d at 1223–1224.
31. Id., 628 F.3d at 1224–1225. It may be worthy to note that newly appointed Justice Neil Gorsuch, who did not participate in the consideration or decision of Packingham, served as a Judge on the panel of the Tenth Circuit that delivered the opinion in Doe v. Shurtleff.
32. Cal. Penal Code, Section 290.45(a)(1)(emphasis added).
33. Doe v. Harris, 772 F.3d at 581.
34. Id., 772 F.3d at 579–580.
35. Id., 772 F.3d at 580 (emphasis added)(“The problem is that [the statute] contains no standards for judging what is ‘necessary to ensure the public safety’”).
36. California Stats. 2016, Ch. 772, Sec. 8, eff. January 1, 2017).
37. The Question Presented by the Petitioner on certiorari in Minnis was: “Whether a statute violates the First Amendment on its face where it requires a class of people to regularly inform the government of where and under what name they have uttered any speech on the internet, on threat of criminal punishment, and that information is then freely shared with the public.”
38. Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 919 (1950)(Frankfurter, J., respecting denial of certiorari.)
39. There is a consensus among courts that persons who are on probation or parole have diminished rights under the First Amendment. However, when confronting the tendency to treat all registrants as having diminished First Amendment rights after conviction (which the Supreme Court found “troubling” in Packingham), the Ninth Circuit ruled in Doe v. Harris that registrants who are no longer on probation or parole “enjoy the full protection of the First Amendment.” Id., 772 F.3d at 572.
40. Current Facebook policy published within its online “Help Center” states that “[c]onvicted sex offenders aren’t allowed to use Facebook. . . . Once we’re able to confirm someone’s status as a sex offender we immediately disable their account” (last visited July 4, 2017).