The XX Factor

Federal Appeals Court Strikes Down Absurdly Repressive North Carolina Sex Offender Law

No-go zone.

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North Carolina’s efforts to drive sex offenders out of public life hit another roadblock on Wednesday when the U.S. Court of Appeals for the 4th Circuit held that two key provisions of a repressive sex offender law violate the Constitution. The ruling marks the second time this year that a federal appeals court has issued a harsh rebuke to a state for enacting outrageous restrictions against former sex offenders, after the 6th Circuit upbraided Michigan for turning sex offender registrants into “moral lepers.” Wednesday’s decision is also a victory for reality-based jurisprudence: The court refused to accept North Carolina’s baseless assertions that former sex offenders are dangerous forever, instead demanding evidence that its draconian infringements on constitutionally protected liberties actually help anybody.

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The North Carolina law at issue bars sex offenders—including those whose crimes do not involve minors—from visiting “any place where minors gather for regularly scheduled” activities. A group of sex offenders challenged the law as a violation of the Due Process Clause, which proscribes laws so vague that a reasonably intelligent person could not understand what behavior they prohibit. Law enforcement officers have used this provision to indefinitely exclude sex offenders from G-rated movies, fast food restaurants, hospitals, museums, fairgrounds, and softball games, because children might be present.

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But, of course, children might be present in almost any public space, and the law’s phrasing is so hazy that it could be read to punish any sex offenders who leave their homes. As the 4th Circuit explained, “neither an ordinary citizen nor a law enforcement officer could reasonably determine what activity [is] criminalized” by the law. “As a consequence,” the court concluded, it “does not meet the standards of due process because it is unconstitutionally vague.”

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Luckily for North Carolina, another, more specific provision of the law bars sex offenders from going “within 300 feet of any location intended primarily for the use, care, or supervision of minors”—including “malls, shopping centers, or other property open to the general public.” Unluckily for North Carolina, this clause violates the First Amendment. The law’s sweeping breadth, the 4th Circuit wrote, inhibits offenders’ ability “to go to a wide variety of places associated with First Amendment activity,” including “public streets, parks, and other public facilities.” It thus seriously interferes with offenders’ freedom of expression and association.

To pass constitutional muster, these “sweeping restrictions” on First Amendment freedoms must “materially advance an important or substantial government interest.” Put differently, all North Carolina had to do to justify its law was put forth persuasive evidence that barring sex offenders from public facilities protects women and children, as the legislature insisted it would in passing the statute. It could do so with proof that former sex offenders frequently re-offend, even after prison and parole.

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But North Carolina could do no such thing. “The only ‘evidence’ proffered by the State,” the court explained, “consisted of citations to a list of cases in which sex offenders had re-offended after a prior conviction. … None of these cases suggest with any degree of reliability that offenders with only adult victims are more likely to reoffend with minors.” Even worse:

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The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with a renewed appeal to anecdotal case law, as well as to “logic and common sense.” But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof. Thus, while the State’s argument may be conceptually plausible, it presented no evidence or data to substantiate it before the district court.

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Accordingly, the court permanently blocked the provision as a contravention of the First Amendment.

The struggle to restore sex offenders’ constitutional rights—following a nasty, decadeslong campaign of misinformation that vilifies offenders as beyond rehabilitation—enjoys relatively few victories. Indeed, North Carolina has already passed a new sex offender law that clarifies the older statute’s unconstitutionally vague language, although it still poses serious First Amendment problems. Still, on the whole, the courts appear to be demanding more proof from states that—in the words of the 6th Circuit—their “onerous, “retributive,” “byzantine codes” really do protect women and children from sex crimes. That’s a terrific development. Just as judges are increasingly asking for evidence that voter ID laws prevent voter fraud and abortion restrictions protect women, courts should seriously query whether harsh sex offenders law truly help anybody. In 2017, the Supreme Court will hear a case involving the First Amendment rights of former sex offenders. It’ll mark a prime opportunity for the justices to reiterate that a former criminal’s constitutional liberties do not disappear simply because his name appears on a sex offender registry.

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