The internet has become so essential to American public discourse that saying so is almost trite now. Members of Congress regularly use social media to engage with constituents. The President has turned Twitter into one of his primary modes of communication. It was only a matter of time before the U.S. Supreme Court got its turn to sing the praises of social media.
In Packingham v. North Carolina, the Supreme Court unanimously struck down a North Carolina criminal law that made it a felony for registered sex offenders to access social networking and other websites. In doing so, however, the Court took a step—perhaps a bigger step than some intended—toward guaranteeing a constitutional right under the First Amendment to access the internet.
The Case of Lester Packingham
Packingham involved a 2008 North Carolina statute that made it a felony for a registered sex offender to access a “commercial social networking” website that is known to allow minors. The law defined a “commercial social networking” website with four requirements: (1) the operator of the website had to earn revenue through fees or advertisements; (2) the website had to allow for “social introductions” between people; (3) the website must allow users to create widely available personal profiles or pages; and (4) the site must give users a mechanism of communicating with each other, such as through a chat room or message board. Though the law carved out a few exceptions, it created a broad enough stick that the state of North Carolina had already prosecuted over a thousand people for violating it.
Nearly a decade after Packingham was convicted for a sex crime and registered as a sex offender, he posted on Facebook about how excited he was to have gotten a traffic ticket dismissed. A member of the local law enforcement noticed the post, and the state charged Packingham with violating the North Carolina law without alleging he had contacted a minor or committed any other illicit acts on the internet. The trial court denied Packingham’s First Amendment challenge to the statute, and he was ultimately convicted for violating the statute. North Carolina’s intermediate Court of Appeals agreed with Packingham and struck down the statute. But the North Carolina Supreme Court reversed, finding the law to be “carefully tailored” to avoid violating the freedom of speech.
Justice Kennedy: Social Media is the “Modern Public Square”
In an 8-0 decision, the Supreme Court on June 19 reversed the North Carolina Supreme Court and struck down the North Carolina law as unconstitutional.
Writing for five justices, Justice Anthony Kennedy kicked off his opinion with an analogy. Within First Amendment law, there is a “basic rule” that a “street or a park is a quintessential forum” for the exercise of speech. And what is the equivalent forum of today? The “answer is clear,” Justice Kennedy put forward: “It is cyberspace.... and social media in particular.”
The majority spent a good portion of its opinion highlighting the centrality of the internet to First Amendment activities and modern life. It noted that websites like Facebook, LinkedIn and Twitter collectively have billions of users, each of whom engages in multiple First Amendment-protected activities: debating religion and politics, sharing photographs, advertising and finding jobs, and reaching out to elected officials. Justice Kennedy went on to describe the “Cyber Age” as a “revolution of historic proportions,” acknowledging what lawyers working in this field have taken to heart: “courts must be conscious that what they say today might be obsolete tomorrow.”
The majority held that the North Carolina statute impermissibly burdened more speech than necessary in order to further its purpose—the protection of children against recidivist sexual predators. Even though the Packingham majority acknowledged that North Carolina’s goal was extremely important, it also found that the law’s prohibitions were “unprecedented” in scope and thus could not stand. Social media sites allow for the communication of ideas and knowledge; they are the “modern public square.” Cutting individuals off from these important spaces prevents them from exercising their First Amendment rights. Furthermore, 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.”
Justice Alito’s Concurrence: Whoa There, Justice Kennedy
Writing for three members of the Court, Justice Samuel Alito concurred in the conclusion that the North Carolina law was overbroad and thus unconstitutional, but was hesitant to support the majority’s “undisciplined... musings that seem to equate the entirety of the internet with public streets and parks.” After all, Justice Alito’s concurrence notes, there are clear distinctions between parks and cyberspace: from differences in the ability for parents to monitor their children, to differences in the amount of anonymity each space offers. And Justice Alito expressed concern that some may read the majority’s broad language as a prohibition on any and all attempts to pass laws addressing child sexual exploitation online or other efforts to regulate access to the internet.
At root, Justice Alito’s concurrence took issue with the improper tailoring of the North Carolina law. Its vague language would prevent registered sex offenders from accessing, for example, Amazon, The Washington Post or WebMD. By categorically blocking access to these sites, the North Carolina law goes well beyond its intended means and runs afoul of the First Amendment.
Implications for Future Internet Regulations
The Court’s Packingham decision is one of the first cases to seriously hint at the idea that access to online forums of expression is a protected right. Heavily relying on an amicus brief by the Electronic Frontier Foundation, Justice Kennedy’s opinion highlights the importance of the internet as a marketplace of ideas, and its central role in promoting associational rights of persons in a free society. The Packingham decision casts serious doubt on the constitutionality of state and federal statutes, regulations and interpretations, which may impose broad limitations on access to the internet, particularly where the restriction is based on a person’s continuing status or in the absence of an adjudication. Packingham may ultimately prove to be a powerful doctrinal weapon that internet-based companies can wield against laws and regulations that limit access to their services.
An important question that Packingham leaves unanswered, however, is what level of constitutional scrutiny applies to content-neutral regulations affecting access to the modern internet. All eight justices agreed that the North Carolina statute, given its overbreadth, would fail under any level of scrutiny under First Amendment jurisprudence. But the majority’s opinion gives little guidance for lawmakers that want to take steps to deter online predation on what type of statute would withstand a First Amendment challenge.
*Adi Kamdar is a summer associate in Fenwick's litigation group.