** LEGAL UPDATE **
In a case called Packingham v. North Carolina, the U.S. Supreme Court unanimously struck down a North Carolina law that prohibited convicted sex offenders from using the Internet to access social networking websites. The case was an important test of the rights conferred by the First Amendment, and the extent to which states can restrict those rights as part of criminal punishment. Ultimately, the Court held that North Carolina’s statute impermissibly burdened protected First Amendment activities.
The case centered on a 2009 North Carolina statute. N.C. Gen. Stat. Ann. § 14–202.5 made 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.”
Under the statute, a “commercial social networking Web site” is defined as a website that (1) “derives revenue from membership fees, advertising, or other sources…”; (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 personal profiles…”; and (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.”
Examples of such sites are common, with Facebook, MySpace, or LinkedIn all well-cited examples. North Carolina’s stated goal, of course, was to ensure the safety of children by preventing sex offenders from coming into contact with them over the Internet.
Lester Gerard Packingham had been a registered sex offender in North Carolina since 2002 after he pled guilty at age 21 to having sex with a 13-year-old girl whom he said he was dating. Packingham had no further convictions for sex crimes after that incident. In 2010, however, he posted on Facebook about a traffic ticket. This caught the attention of the authorities, and he was convicted under N.C. Gen. Stat. Ann. § 14–202.5.
Packingham challenged the constitutionality of the law, arguing among other things, that it infringed on his First Amendment rights to “speak” in the public square.
In an 8-0 decision authored by Justice Anthony M. Kennedy, the Court held that North Carolina’s statute was unconstitutional.
Applying a legal test known as intermediate scrutiny, the Court essentially required the state of North Carolina to show that the statute was narrowly tailored to its objective; in other words, that the statute does not burden a sex offender’s First Amendment rights any more than necessary to achieve the government’s goal of safeguarding children.
North Carolina was unable to meet this burden, since the statute banned participation in essentially all types of social media, without any meaningful chronological or substantive limitations.
The Court’s decision is remarkable for its description of social media as central to modern day discourse. For example, the Court noted that about 70% of Americans use at least one social networking service. Facebook alone has 1.79 billion active users, about three times the population of North America. Justice Kennedy emphasized the fact that these social networks are now essential means of communication in democratic society about topics ranging from politics to economics to culture to religion:
On Facebook… 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,” he wrote. “Indeed, Governors in all 50 States and almost every Member of Congress have set up accounts for this purpose. In short, social media users employ these websites to engage in a wide array of protected First Amendment activity….
Justice Samuel Alito, joined by Justice Thomas and Chief Justice Roberts, concurred in the judgment but offered a different analysis, writing that the majority opinion perhaps went too far in equating the Internet with the modern public square. Justice Alito also worried that the majority’s opinion could leave states “largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites.”
The Supreme Court is sometimes criticized as being generationally out of touch with many Americans. Yet its decision in Packingham gives full voice to the role of the Internet generally, and social media specifically, in modern American life.
The justices unanimously acknowledged that the “public square” that was so valuable to the Framers of the Constitution in the eighteenth century exists today in another form. Although the scope of this case is narrow--a specific law affecting convicted sexual predators--the broader importance of social media within the context of the First Amendment is likely to become an increasingly important legal issue.
Effective Date: June 19, 2017