Supreme Court Rules First Amendment Covers Social Media Access

The US Supreme Court has struck down a North Carolina law that made it a felony for registered sex offenders to use social networks and other websites.

The New York Times celebrated the decision as a victory for free speech.

The case of Packingham v. North Carolina involved a 2008 statute that made it a felony for sex offenders to access "commercial social networking sites" that met the following criteria:

  • the site earned revenue through fees or ads
  • the site allowed for "social introductions" between members
  • the site allowed the creation of personal profiles or pages
  • the site allowed communication between members, via messaging, chat, etc.

Registered Offender

The law was challenged by Lester Gerard Packingham. In 2002, Packingham, then a 21-year-old college student, had sex with a 13-year-old girl. He pleaded guilty to "taking indecent liberties with a child." This crime is considered "an offense against a minor," and Packingham was required to register as a sex offender. This status can continue for 30 years or more.

As a registered sex offender, Packingham was prohibited from using social networks under the state law.

In 2010, a state court dismissed a traffic ticket against Packingham.  He went onto Facebook to celebrate, and posted:

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!

Busted

A member of the Durham Police Department who was investigating registered sex offenders who were violating the state social media law noticed the post.

Packingham was indicted by a grand jury for violating the state law. He was convicted and given a suspended sentence.

The state did not contend that Packingham had at any time contacted a minor using social networking.

Packingham challenged his conviction on First Amendment grounds, arguing that the state law was not narrowly tailored to serve the state's legitimate interest in protecting minors from sexual abuse.

First Amendment

The case eventually reached the US Supreme Court, which stated:

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.

"Places" include both public spaces, like streets and parks, and virtual spaces like the Internet:

While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, ... and social media in particular.

The Court concluded:

to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.

As Wired noted,

That’s not to say that governments can’t narrowly restrict certain classes of criminals from engaging in certain behaviors online. The court’s opinion finds that states can, for instance, bar sex offenders from contacting minors online or, as the court puts it, “conduct that often presages a sexual crime.” 

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