Packingham v. North Carolina, 15-1194 (June 2017). Episode 386 (Duration 10:04)
Can’t have a sweeping law keeping sex offenders off of Facebook and other social media.
North Carolina enacted a statute making it a felony for a registered sex offender
“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.”
This includes commonplace social media websites like Facebook and Twitter.
What He Did
Defendant—then a 21-year-old college student—had sex with a 13-year-old girl.
He pleaded guilty to taking indecent liberties with a child.
Because this crime qualifies as “an offense against a minor,” petitioner was required to register as a sex offender—a status that can endure for 30 years or more.
Goes On Facebook
Defendant logged onto Facebook.com and posted the following statement on his personal profile:
“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!”
The question presented is whether that law is permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment.
A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.
The Court has sought to protect the right to speak in this spatial context.
A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights.
While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear.
It is cyberspace, and social media in particular.
Facebook has 1.79 billion active users.
This is about three times the population of North America.
Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.” On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos.
On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship.
And on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner.
In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.”
These Judges Are Cool
The 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.
This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet.
As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium. For centuries now, inventions heralded as advances in human progress have been exploited by the criminal mind. New technologies, all too soon, can become instruments used to commit serious crimes.
The railroad is one example, and the telephone another.
So it will be with the Internet and social media.
What Is Allowed
And it is clear that a legislature “may pass valid laws to protect children” and other victims of sexual assault “from abuse.”
The government, of course, need not simply stand by and allow these evils to occur.
But the assertion of a valid governmental interest must give weight to serious constitutional constraints. Though the issue is not before the Court, it can be assumed that
…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.
Specific laws of that type must be the State’s first resort to ward off the serious harm that sexual crimes inflict.
(Of importance, the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court.)
What Is Not Allowed
Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.
Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke 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.
These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.
They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.”
In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.
It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.
It is well established that, as a general rule, the Government “may not suppress lawful speech as the means to suppress unlawful speech.”
That is what North Carolina has done here.
Its law must be held invalid. The judgment of the North Carolina Supreme Court is reversed, and the case is remanded for further proceedings.