Yesterday’s unanimous ruling by the U.S. Supreme Court in Packingham v. North Carolina is one of the first decisions in which the Court has addressed broadly the relationship between the First Amendment and social media, modern society’s “most important place . . . for the exchange of views.” In striking down a sweeping North Carolina statute prohibiting registered sex offenders from accessing Internet websites such as Facebook, Twitter, and LinkedIn, the Court concluded that foreclosing access to social media altogether prevents the user from engaging in the legitimate exercise of First Amendment rights.
In 2010, Lester Packingham took to Facebook after his parking ticket was dismissed, proclaiming:
“Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent. . . . Praise be to GOD, WOW! Thanks JESUS!”
Because of this post, Packingham was convicted under a North Carolina statute. The reason for his conviction: Packingham is one of about 20,000 registered sex offenders in North Carolina, and a 2008 North Carolina statute (N. C. Gen. Stat. Ann. §14–202.5) made it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter. After Packingham appealed his conviction, the North Carolina Court of Appeals struck down §14–202.5 on First Amendment grounds, but the North Carolina Supreme Court reversed, concluding that the law is “constitutional in all respects.”
The Supreme Court held the North Carolina statute invalid because it violates the First Amendment. Early in the majority opinion, Justice Kennedy considered the “spatial context” within which “all persons have access to places where they can speak and listen.” Streets and parks, for example, have been the “quintessential” and “essential” venues for the exercise of First Amendment rights. Today, “the answer is clear,” that the “vast democratic forums of the Internet” (cyberspace), particularly social media (Facebook, LinkedIn, and Twitter identified by name), are “the most important places (in a spatial sense) for the exchange of views.” In his concurring opinion, Justice Alito (joined with Chief Justice Roberts and Justice Thomas) considered this portion of the majority opinion to be “undisciplined dicta,” because “it is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites . . . .” “[I]if the entirety of the internet or even just ‘social media’ sites are the 21st century equivalent of public streets and parks,” Justice Alito writes, “then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offenders.”
All of the Justices agreed that while the North Carolina statute addresses a critical problem, it is far too broad to satisfy the demands of the First Amendment. By prohibiting sex offenders from using social media altogether, §14–202.5 “bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” Such a sweeping law impermissibly prevents users “from engaging in the legitimate exercise of First Amendment rights.” North Carolina thus “may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture.” The Court therefore reversed the judgment of the North Carolina Supreme Court and remanded the case for further proceedings consistent with the ruling.
The Supreme Court’s decision is not surprising because, as Justice Kennedy expressed, “the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.” To be clear, the First Amendment permits a State to enact “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” – but such laws must be specific and narrowly tailored. Simply stated, the North Carolina legislature must go back to the drawing board.
Perhaps the most interesting aspect of the majority opinion is Justice Kennedy’s observation that the long-term relevance of legal opinions depends, in part, on the judiciary’s vigilance in rendering decisions that consider the revolution and evolution of the Internet Age. Before spelling out the Court’s reasoning, Justice Kennedy cautioned that “forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow”:
“While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.”
While Justices Alito, Thomas and Roberts agreed “that we should be cautious in applying our free speech precedents to the internet,” they maintained that “[c]yberspace is different from the physical world, and if it is true, as the Court believes, that ‘we cannot appreciate yet’ the ‘full dimensions and vast potential’ of ‘the Cyber Age,’ ibid., we should proceed circumspectly, taking one step at a time. It is regrettable that the Court has not heeded its own admonition of caution.” This apparent friction within the high court may manifest itself in future decisions on similar issues, but for now the decision can only be seen as an endorsement of the fundamental principle of free speech.