STATE v. PACKINGHAM
No. 366PA13
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 6 November 2015
368 N.C. 380 (2015)
REVERSED.
STATE OF NORTH CAROLINA v. LESTER GERARD PACKINGHAM
No. 366PA13
Filed 6 November 2015
Sexual Offenders—unauthorized accessing of social networking website—Facebook—constitutionality of statute
The Court of Appeals erred by vacating defendant‘s conviction for accessing a social networking website as a registered sex offender based on its determination that
Justice HUDSON dissenting.
Justice BEASLEY joining in dissent.
Justice ERVIN did not participate in the consideration or decision of this case.
On discretionary review pursuant to
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,
In 2008, the General Assembly enacted
The case went to trial and, after considering evidence that defendant maintained a Facebook page, a jury on 30 May 2012 found defеndant 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
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
Defendant argues that
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 thе 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 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 statute at issue provides in pertinent part:
(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 рersonal 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.
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,
Our next inquiry is whether
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-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
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 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 apрlies 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
“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
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
Looking to the first two O‘Brien factors, the parties agree that promulgating restrictions such as those contained in
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
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 сonviction 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.
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.
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 Clark, 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 e-mail 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. 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 Statе 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.”
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
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 оur own. For instance, 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
Thus, we conclude that
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
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, 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’ sоmething, 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
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., Inc. v. FCC, 512 U.S. 622, 662, 114 S. Ct. 2445, 2469, 129 L. Ed. 2d 497, 530 (1994). 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. 1985)). Instead, the State must demonstrate “that the regulation will in fact alleviatе these harms in a direct and material way.” Id. (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
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 registered sex offenders who are lurking on social networking Web sites and gleaning information on potential
Defendant also argues 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 wоrded, 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 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 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,
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 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
Accordingly, we reverse the opinion of the Court of Appeals.
REVERSED.
Justice ERVIN did not participate in the consideration or decision of this case.
Justice HUDSON dissenting.
The majority concludes that
As an initial matter, I agree with the majority opinion to the extent it concludes that
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. at 376-77, 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 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, ___ U.S. 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
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. 2746, 2756 (1989)). More specifically,
[f]or a content-neutral time, place, or manner 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
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” оr “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.”
In addition, for similar reasons, I сonclude 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 оmitted)); 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 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
For the foregoing reasons, I conclude that
Justice BEASLEY joins in this opinion.