Packingham v. North Carolina

Packingham v. North Carolina, 582 U.S. ___ (2017), is a case in which the Supreme Court of the United States held that a North Carolina statute that prohibited registered sex offenders from using social media websites is unconstitutional because it violates the First Amendment to the U.S. Constitution, which protects the freedom of speech.
In 2010, Lester Gerard Packingham, a registered sex offender, posted on Facebook under a pseudonym to comment favorably on a recent traffic court experience. Packingham was then identified by police and charged with violating North Carolina's law. Packingham moved to dismiss the charges, arguing that the state's law violated the First Amendment. The trial court dismissed this motion and ultimately convicted Packingham. An appellate court initially reversed the trial court, holding that the law did violate the First Amendment, but the North Carolina Supreme Court, the state's highest court, disagreed and reinstated the conviction.
In June 2017, the U.S. Supreme Court unanimously reversed the North Carolina Supreme Court's judgment. In a majority opinion authored by Justice Anthony Kennedy, the Court held that social media—defined broadly enough to include Facebook, Amazon.com, "The Washington Post", and WebMD—is considered a "protected space" under the First Amendment for lawful speech. The Court offered that North Carolina could protect children through less restrictive means, such as prohibiting "conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor".
Background.
North Carolina statute.
The First Amendment to the United States Constitution prohibits the federal government from abridging the freedom of speech, and the Fourteenth Amendment extends this prohibition to state governments under the incorporation doctrine. In 2008, North Carolina passed a law which made it a felony for a registered sex offender "'to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages'". The law defined a "commercial social networking Web site" using four criteria. Specifically, the website must:
The law exempted websites that "'[p]rovid[e] only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform", as well as websites that "have as their 'primary purpose the facilitation of commercial transactions involving goods or services between [their] members or visitors'".
Facts of the case.
In 2002, Lester Gerard Packingham was convicted of taking "indecent liberties with a child", a felony that required him to register as a sex offender. A North Carolina court sentenced him to the standard 10–12 months in prison with 24 months of supervised release. He was given no other special instructions on his behavior outside of prison other than "remain away from" the minor. In 2010, after a state court dismissed a traffic ticket against Packingham, he made a post on Facebook under the name "J. R. Gerrard", stating: "Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent. . . . . .Praise be to GOD, WOW! Thanks JESUS!" The Durham Police Department identified Packingham as the author of the post after cross-checking the time of the post with recently dismissed traffic tickets, and a grand jury indicted him for violating the North Carolina statute.
Lower court proceedings.
Packingham argued that the social media law violated his First Amendment rights and demanded that it be struck down as unconstitutional. A North Carolina Superior Court judge denied his motion, ruling that Packingham's First Amendment rights were not being infringed in this case due to the state's “interest in the protection of minors”, and he was convicted. Packingham appealed to the North Carolina Court of Appeals, which reversed the decision made by the trial court, finding that the website provision was unconstitutional under the First Amendment. The state of North Carolina appealed to the North Carolina Supreme Court, who reversed the decision made by the Appeals Court, finding that it was a “limitation on conduct” and did not impede any free speech. The North Carolina Supreme Court found that the state had a vested interest in “forestalling the illicit lurking and contact of minors” by registered sex offenders and potential future victims, and sustained Packingham's conviction under N.C. Gen. Stat. § 14-202.5, which made it a felony for any person on the State's registry of sex offenders to "access" a wide array of websites-including Facebook, YouTube, and nytimes.com.
Supreme Court.
Packingham filed a petition for a writ of "certiorari" with the Supreme Court of the United States. The federal government also filed a brief recommending that the Supreme Court grant "certiorari", arguing that the North Carolina Supreme Court incorrectly decided the case in favor of the respondents. The Supreme Court granted "certiorari" on October 28, 2016. The Court agreed to hear arguments for the case on December 22, 2016, and set the date for arguments as February 27, 2017. Amicus briefs in support of Packingham were filed by the libertarian Cato Institute and the American Civil Liberties Union. The North Carolina Supreme Court filed a brief supporting the respondents, urging the importance of protecting minors in the Internet age from being stalked online.
Oral argument.
The oral argument took place on February 27, 2017. Packingham’s lawyer, David T. Goldberg, argued that the law banned “vast swaths of First Amendment activity”, went too far in restricting what internet sites could be accessed, and forbade use of the Internet in general. The law targeted speech on some of the platforms that Americans use most often, Goldberg noted, and that under the law Packingham could not even use Twitter to read the myriad messages discussing his own case. He further noted that the law imposes punishment without regard to whether the offender actually did anything wrong. North Carolina’s senior deputy Attorney General, Robert C. Montgomery, argued for the state. Montgomery claimed communication through social media sites is a “crucial channel”.
Justice Sotomayor asked Montgomery to provide evidence as to the claim that by giving Packingham Internet privileges, he would commit another crime. Justice Stephen Breyer agreed, stating “It seems to be well-settled law that the state can’t (bar usage) unless there is a 'clear and present danger.' "
Opinion of the Court.
On June 19, 2017, the Supreme Court delivered judgment in favor of the accused, unanimously voting to reverse the state court. Justice Kennedy, in an opinion joined by Ginsburg, Breyer, Sotomayor, and Kagan, explained the decision: "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." He continued that "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." Citing "Ashcroft v. Free Speech Coalition", Kennedy also wrote: "It is well established that, as a general rule, the Government 'may not suppress lawful speech as the means to suppress unlawful speech'."
Concurring opinion.
Justice Alito wrote a concurring opinion, joined by Roberts and Thomas. While Alito agreed with Kennedy's opinion, he noted that there are reasonable scenarios where legal bans for sex offenders can be placed, such as for sites targeted for teenagers.
Analysis.
"Packingham v. North Carolina" is one of the first U.S. Supreme Court cases to analyze the role of the First Amendment with respect to the Internet. According to Ashutosh Bhagwat, a law professor at the UC Davis School of Law, as of 2018 "Packingham" is one of only two cases heard by the Roberts Court that directly address new technologies, the other being "Brown v. Entertainment Merchants Association" (2011) with respect to video games, and the only Roberts Court free speech case specifically relating to the Internet. Bhagwat speculated that this might change in the future, as "recent calls to regulate 'fake news' and otherwise impose filtering obligations on search engine and social media companies will inevitably raise important and difficult First Amendment issues".
Effect on First Amendment case law.
In an article published in the "North Dakota Law Review", Katie Miller wrote that the "Packingham" decision may be used to challenge laws and restrictions in other states similar to the one in North Carolina. For example, in a case called "United States v. Rock" (2017), a defendant who pleaded guilty to distributing child pornography cited "Packingham" in an appeal of one of the conditions of his supervised release, which prevented him from possessing or using a computer. The U.S. Court of Appeals for the D.C. Circuit rejected that argument on the basis that the defendant's release condition was not a "post-custodial restriction" as it was in "Packingham", stating that "'a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens'".
Effect on Internet speech.
According to Madeleine Burnette-McGrath, in an article published in the "Ohio Northern University Law Review", private corporations, not the government, impose most of the restrictions on Internet speech that exist today. Burnette-McGrath argued that the "privatization of Internet speech regulation is essential in a free market as it allows companies to dictate their own business practices" but that ""Packingham" adopts a new avenue for government regulation, allowing the government to interfere with individual social media entities and their ability to regulate speech that occurs on their websites". Specifically, "Packingham" delineates an intermediate scrutiny test for governmental regulation of Internet speech, under which a government agent "need only put into effect a law that is both narrowly tailored to and includes a substantial government interest". Burnette-McGrath described this as a "low standard" that may inspire states to "implement new laws under the guise of substantial government interest or of being narrowly tailored" at the detriment of free speech on the Internet.