The Supreme Court of the United States heard oral arguments for Packingham v. United States in February of 2017. The opinion of the Court, written by Justice Kennedy, was released on June 19, 2017. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined Justice Kennedy’s opinion with Justices Alito, Roberts and Thomas concurring. Newly appointed Justice Gorsuch did not participate in the decision.
“ [T]he Supreme Court held that the North Carolina statute that makes it a felony for a registered sex offender to gain access to commercial social networks websites such as Facebook and Twitter is unconstitutional.”
Justice Kennedy refers to the case in his majority opinion as “one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet.” The question presented to the Court was “whether [N. C. Gen. Stat. § 14-202.5(c)(2)] is permissible under the First Amendment’s Free Speech Clause.” Following the First Amendment framework cited by the lower courts, the Supreme Court held that the North Carolina statute that makes it a felony for a registered sex offender to gain access to commercial social networks websites such as Facebook and Twitter is unconstitutional.
In the eyes of the Court, and in accord with the North Carolina Court of Appeals, the fatal flaw of the statute is its unconstitutional over breadth. The Court stated that the “sweeping law” enacts “a prohibition unprecedented in the scope of First Amendment speech it burdens.” The Court did not find it necessary to determine the applicable level of scrutiny under which to analyze the statute, claiming that the provision could not withstand even the lowest level.
This is an update to an original article posted on November 21, 2016.
In justifying its holding, the Court emphasized the need to protect democratic forums and spaces for the exchange of views. Referencing historical First Amendment jurisprudence that protects public spaces, the Court drew an analogy between cyberspace and the “town square” and between internet users and “a town crier.” The Court recognized social media as the “most important place for the exchange of ideas,” a principal “source for knowing current events, checking ads for employment, speaking and listening” and that precluding people affected by the statute from such sites is not necessary or legitimate to serve the purpose of keeping sex offenders away from potential victims. This is especially true as the language of the statute can be read to prohibit registered sex offenders from accessing websites such as Amazon.com, Washingtonpost.com, and Webmd.com.
“North Carolina can still enact ‘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 Court, and especially the concurring Justices, were careful to explain that their opinion “should not be interpreted as barring a State from enacting more specific laws than the one at issue.” Emphasizing the importance of protecting potential victims of sex offenses, the Court instructs that North Carolina can still enact “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.” In making such statutes, it is on the North Carolina legislature to make sure that the provisions prohibit the least amount of First Amendment activity as is necessary and legitimate to serve the purpose of keeping convicted sex offenders from the most vulnerable members of our society—minor children.