SCOTUS Gets Social: Does the First Amendment Protect the Right to … – Lexology (registration)

The U.S. Supreme Court has issued one of its first decisions addressing the relationship between the First Amendment and the Internet. In Packingham v. North Carolina, 582 U.S. ___ (June 19, 2017), the Court holds that a North Carolina sex offender statute violates the First Amendments free speech guarantee.

The North Carolina statute at issue in Packingham made it a felony for registered sex offenders to access social networking websites that permit access to minor children. Lester Gerard Packingham, the petitioner and a registered sex offender, violated that law in 2010 by posting on Facebook about a traffic ticket. After his indictment by a grand jury, the instant First Amendment issue progressed through the North Carolina courts and the Supreme Court granted certiorari.

Justice Kennedys majority (incld. Justices Ginsburg, Breyer, Sotomayor, and Kagan) declares that [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. Packingham, Slip Op. at 4. The Court not only reiterated the basic tenet that a street or a park is a quintessential forum for the exercise of First Amendment rights, but took it further in stating:

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 cyberspacethe vast democratic forums of the Internet in general, and social media in particular.

Id. at 4-5 (internal quotations and citations omitted). The majority opinion, however, cautions that [t]he 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. Id. at 6.

The Court ultimately holds that the North Carolina statute suppress[es] lawful speech as the means to suppress unlawful speech and therefore must be held invalid. Id. at 10 (internal quotations and citations omitted). Although a State may 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, the North Carolina statute was unprecedented in the scope of First Amendment speech it burdens because to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. Id. at 7-8. The Court overturned the judgment of the North Carolina Supreme Court and remanded the case for further proceedings consistent with the Courts opinion.

Justice Alitos concurrence, joined by Chief Justice Roberts and Justice Thomas, agrees that the North Carolina statute violates the First Amendment but takes issues with dicta of the majority opinion and notes that the three Justices are troubled by the implications of unnecessary rhetoric. Id., Concurrence at 2.

The concurrence notes that if the entirety of the internet or even just social media sites are the 21st century equivalent of public streets and parks, then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offenders. Id. at 10. Expressing the view that [t]he Court should be more attentive to the implications of its rhetoric because there are important differences between cyberspace and the physical world, the concurring Justices recommend that we should proceed circumspectly, taking one step at a time. Id. at 10-11.

The ultimate impact and reach of these opinions, including their application of the First Amendment to social media, will be explored by lower courts, state and federal legislators, and (perhaps) again the Supreme Court (Justice Gorsuch did not participate in this decision).

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SCOTUS Gets Social: Does the First Amendment Protect the Right to ... - Lexology (registration)