The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As most VC readers know, First Amendment law is dominated by a single question, the 800-pound constitutional gorilla that's always in the room: What "level of scrutiny" will the court apply to the challenged government action? How much will it demand from the government by way of justification for whatever it was that it did? How high will it set the bar?
Critical to that determination is the threshold question: Is the challenged government action a regulation of/burden on speech, or is it a regulation of/burden on conduct, with merely an "incidental effect" on speech? The distinction is critical (and often outcome-determinative) because, as the Supreme Court of North Carolina put it in a recent case (State v. Packingham, available here):
. . . a statute that regulates speech is subjected to exacting scrutiny: The State must show that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. . . . In contrast, a regulation that governs conduct while imposing only an incidental burden upon speech must be evaluated in terms of [its] general effect . . . [and] is permissible so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. [internal quotations and citations omitted]
So consider this: North Carolina law (N.C.G.S. § 14-202.5) makes it a criminal offense for anyone previously convicted of a sex offense to:
"access a commercial social networking Web site [that] . . . permits minor children to become members or to create or maintain personal Web pages on the [site]."
The stated purpose of the law is to prevent sex offenders from "gathering information about minors on the Internet." The statute defines a "commercial social networking Web site" within the statutory access prohibition as an Internet site that
"(1) Is operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site;
(2) Facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges;
(3) Allows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Web site; [and]
(4) Provides users or visitors to the commercial social networking Web site mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger."
There are two statutory exceptions: A site is not a "commercial social networking Web site" if it either:
"(1) Provides only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform; or
(2) Has as its primary purpose the facilitation of commercial transactions involving goods or services between its members or visitors."
Now, there are, I suppose, many things to be said for and against a statute like this. I've made my position clear many times (e.g., here and here): I think statutory schemes like this are ineffective, deeply unfair, counterproductive, cruel and unconstitutional on their face. But reasonable people can disagree, perhaps, about all that.
But one thing I would think we could all agree on is that this is surely a regulation of speech as opposed to conduct. The statute will—and is designed to—constrain people from communicating with other people in certain specified ways. No Facebook, no Instagram, no Twitter, no Pinterest, no Vine, no Tumblr** . . .—whatever else this is, it would hardly seem plausible to suggest that it is not regulating the ability of previously convicted sex offenders to communicate with others.
** And I wonder whether the VC itself, and/or washingtonpost.com, are within the statutory definition of "commercial social networking Web site." We certainly "permit minor children to become members" and to "maintain personal Web pages" (via their Profile pages), the site is "operated by a person who derives revenue from . . . advertising," the site "[f]acilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchange," we "[a]llow users to create Web pages or personal profiles that contain information such as the name or nickname of the user," and—through the Facebook links—we "[p]rovide users [with] mechanisms to communicate with other users."
But the NC Supreme Court—strangely and inexplicably—found otherwise, holding that this statute does not regulate speech but is, instead, a regulation of conduct (which may have merely an "incidental effect" on speech) which therefore receives only the lightest judicial scrutiny. Here's the entirety of the analysis:
This statute addresses the ability of registered sex offenders to access some social networking Web sites. . . . [T]he statute here defines a "commercial social networking Web site" as one that facilitates social introduction between people, and provides users with a means of communicating with each other. As is apparent to any who access them, social networking Web sites provide both a forum for gathering information and a means of communication. . . . [T]he essential purpose of section 14-202.5 is to limit conduct, specifically the ability of registered sex offenders to access certain carefully-defined Web sites. This limitation on conduct only incidentally burdens the ability of registered sex offenders to engage in speech after accessing those Web sites that fall within the statute's reach. Thus we conclude that section 14-202.5 is a regulation of conduct. [emphasis added]
Thus, accessing Facebook is conduct, not speech, and a prohibition on such access gets only the lowest form of scrutiny under the First Amendment.
Really? That is precisely like saying that a prohibition on using a telephone, or a printing press, is merely a regulation of "conduct"—because, I suppose, it constrains the physical acts of picking up and dialing a phone, or turning on a machine, with only an "incidental" burden on whatever happens after those actions take place. Or how about a law prohibiting convicted felons from entering a public library? Is the court seriously suggesting that that would just be considered a regulation of "conduct"—because, I suppose, it affects only individuals' movement through space—that "only incidentally burdens the ability [of persons subject to the prohibition] to engage in speech after [entering the library]"?
The two dissenters—Justices Hudson and Beasley—get this one right:
[We] do not agree with the later assertion that the statute primarily regulates conduct and places only an "incidental" burden on speech. This statute completely bars registered sex offenders from communicating with others through many widely utilized commercial networking sites. Therefore, in [our] view, it primarily targets expressive activity usually protected by the First Amendment.
The majority's version of things makes for some pretty ghastly First Amendment law, and will, if followed by other courts, have dreadful consequences. If "accessing a Web site" is conduct and not speech, the scope of potential government regulation of our use of Web sites (and the Internet in general) vastly expands – not a development we should welcome.
I've said it many times before—these sex offender cases are of the deepest importance, not because of any special concern we might have for convicted sex offenders but because they're the despised minority du jour, subject to the harshest treatment that legislators and law enforcement officials can dream up; unless the courts stand up and make it clear that there are lines the government cannot cross without running afoul of the Constitution, government action will become more and more abusive, and then all of our rights are at risk. A shame that the NC court didn't view things that way.
[Update: I couldn't help noticing this from Nadine Strossen's excellent recent Harvard lecture on campus free speech (which Eugene blogged about here):
Well, I'm a free speech absolutist. But, that doesn't mean that speech is always protected. Along with every other fundamental right, it may be restricted. And I'm going to use a lawyer's term here, if, but only if, you can show that the restriction promotes a countervailing goal of compelling importance that can't be promoted in any other way. And that's a very and appropriately hard burden of proof.
Exactly, and exactly why the NC court's holding about the level of scrutiny applied in this case is so important and potentially so destructive.]