U.S. Supreme Court: NC’s law banning sex offenders from social media unprecedented, unconstitutional

The U.S. Supreme Court on Monday struck down a General Assembly statute that they said “impermissibly restricts lawful speech in violation of the First Amendment.”

In Packingham v. North Carolina, Lester Gerard Parkingham Jr., a registered sex offender in the state, was charged after Durham police found a Facebook page he created. He was convicted based on a post in which he celebrated the dismissal of a traffic ticket, declaring “God is Good!”

The question before the U.S. Supreme Court was about the constitutionality of the law that makes it a felony for all registered sex offenders to access such sites, including YouTube and nytimes.com. The answer was clear and unanimous.

“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,” Justice Anthony Kennedy wrote in the opinion. “The Court has sought to protect the right to speak in this spatial context.”

Kennedy acknowledges that in the past, there has been some difficulty determining the most important spaces in a spatial sense for the exchange of views, but notes that today that answer is clear: “It is cyberspace — the ‘vast democratic forums of the Internet’ in general … and social media in particular.”

Kennedy points out that seven in ten American adults use at least one Internet social networking service.

“Social media offers ‘relatively unlimited, low-cost capacity for communication of all kinds,'” Kennedy wrote. “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. 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 on topics ‘as diverse as human thought.'”

Kennedy wrote 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.”

“This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet,” he added. “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.”

The Supreme Court opinion should not be interpreted as barring states from enacting a more specific law than North Carolina’s, Kennedy noted. The broad wording of the North Carolina statute is what’s at issue, according to the opinion.

Kennedy writes in the opinion that a state’s first resort to ward off the serious harm that sexual crimes
inflict should be “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.”

“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.”

New Justice Neil Gorsuch was not appointed to the court in time to participate in the consideration of the case or the decision.

Justice Samuel Alito wrote a separate, concurring opinion, in which Chief Justice John Roberts and Justice Clarence Thomas joined.

Alito wrote that he agreed with the rest of the court that because of the North Carolina law’s “extraordinary breadth,” it violates the free speech clause of the First Amendment. He did not agree, however, to Kennedy’s “undisciplined dicta.”

“The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks,” Alito wrote.

He did not believe the court heeded its own admonition of caution and said they should proceed circumspectly in applying free speech precedents to the Internet.

Chapel Hill attorney Glenn Gerding, an appellate defender in Chapel Hill who represented Packingham, said he was glad to see the Supreme Court assert that the First Amendment protects everyone.

“Social media is an important part of people’s lives and is protected by the First Amendment,” he said.

Gerding said Packingham was also excited that the highest court ruled in his favor and similarly, that the justices recognized that the First Amendment protects all people.

There are thousands of people on the North Carolina sex offender registry who will be affected by the Supreme Court’s decision in this case.

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