Packingham v. North Carolina: A Win for Free Expression Online

Yesterday, in Packingham v. North Carolina the Supreme Court decided that a law that bars sex offenders from using sites like Facebook and Twitter was unconstitutional. In its decision, the Court recognized the fundamental nature of the internet and social media to exercising one’s First Amendment rights, and found North Carolina’s law to be far too broad. This is an important decision for the protection of free expression online.

Background on the Case

In 2008, North Carolina made it a crime for a registered sex offender to “access” many commercial websites that permitted the exchange of information and did not limit their membership to adults. Although the law was intended to stop sex offenders from collecting information about minors on sites like Facebook, the statute (NCGS §14-202.5) covers an overly broad range of websites and also makes it illegal for these individuals to visit sites such as Amazon.com and the Washington Post.

In 2010, Lester Packingham, a registered sex offender, wrote a post on Facebook saying that “God is good,” in reference to a dismissed traffic ticket. Packingham was convicted under the North Carolina statute for this innocuous post and he challenged the law as a violation of his right to free speech.

Our brief also underscored how crucial access to online fora is for people’s political, economic, and social activity.

This argument carried him all the way to the Supreme Court, where the Justices were asked to decide whether the statute was an impermissible violation of the First Amendment. The case raised questions about whether these types of laws barred sex offenders from utilizing the very platforms that will be key for their re-entry into society, and the broader effect of a law like this on public debate. In CDT’s joint amicus brief, we noted that the law’s limitation of registered sex offenders to participate in any kind of interactive online forum deprived other users of the information, opinions, and other forms of expression that these excluded speakers could provide. Our brief also underscored how crucial access to online fora is for people’s political, economic, and social activity.

The Supreme Court Decides in Favor of Free Speech Rights

In its decision yesterday, the Supreme Court held that states cannot broadly limit access to social media because it prevents users from engaging in the legitimate exercise of their First Amendment rights. The opinion, written by Justice Anthony Kennedy, made numerous references to the importance of social media as a forum for the free exchange of ideas, and as a source of news. With full support from Justices Ginsburg, Breyer, Kagan, and Sotomayor, Kennedy wrote, “A fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” Not only did Kennedy’s opinion celebrate the growth and importance of social media, he also noted that “cyber-space is a revolution of historic proportions” and that “we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.”

Kennedy explained that the state’s law was impermissible because it barred sex offenders from accessing a medium that is the primary way in which many people engage in exercise of their First Amendment rights.

After emphasizing that “the Court [needed to] exercise caution before suggesting that the First Amendment provides scant protection for access to” social networking sites like Twitter, Kennedy reasoned that North Carolina’s law did not pass constitutional scrutiny. Applying intermediate scrutiny, the Court found that North Carolina’s law was not narrowly tailored to serve the state’s significant interest in preventing sex crimes against children, because the law prohibited registered sex offenders from engaging in a broad range of expressive activity that had no connection to victimizing children. Kennedy explained that the state’s law was impermissible because it barred sex offenders from accessing a medium that is the primary way in which many people engage in exercise of their First Amendment rights. While the Court found the statute unconstitutional even if it applied only to “social networking sites as commonly understood,” Kennedy also made it clear that states were free to a pass narrower law that would bar a sex offender from using the internet to carry out a sex crime.

Justice Alito, writing a concurrence joined by Justices Roberts and Thomas, agreed with the case’s overall outcome, but sought a narrower ruling that would leave a wider opening for future state regulation of registered sex offenders’ access to online spaces.  While the concurrence criticized some of the rhetoric in Kennedy’s opinion by saying that it was “undisciplined” and had a “staggering reach,” it agreed that the North Carolina statute could not pass even intermediate scrutiny, because of the breadth of websites it barred registrants from accessing.

Monday’s decision of Packingham is an important win for free expression online.  As Justice Kennedy noted, this is one of the first times the Court has considered “the relationship between the First Amendment and the modern Internet.” The Court has left us with a powerful acknowledgement that “foreclosing access to social media altogether … prevents users from engaging in the legitimate exercise of First Amendment rights.”