Supreme Court calls for a response in the 'you can't use Facebook, but you can use the Paula Deen Network instead' case

|The Volokh Conspiracy |

Last week, I blogged about a brief my students and I filed—on behalf of many leading First Amendment law professors—in Packingham v. North Carolina, supporting a petition asking for Supreme Court review; here's our Summary of Argument:

N.C. Gen. Stat. Ann. § 14-202.5 bans convicted sex offenders from accessing a vast range of social networking sites—sites that have become indispensable places for speech about family life, politics, and religion. Yet the North Carolina Supreme Court upheld the law on the grounds that it supposedly left open "ample alternative channels."

True, the court acknowledged, the statute banned access to Facebook and the like. The dissent also noted that the statute banned access to LinkedIn, Instagram, Reddit, Myspace, and the New York Times Web site. But, the court argued, the statute left open access to other social networking websites:

  • The Paula Deen Network, a site that lets registered users to swap recipes and discuss cooking techniques;
  • WRAL.com, the site of a local TV station;
  • Glassdoor.com, an online job searching tool;
  • Shutterfly.com, a photo-sharing website.

This looks more like a parody of the "ample alternative channels" analysis than a serious application of that analysis.

Indeed, this government-friendly approach to the "ample alternative channels" inquiry is sharply inconsistent with this Court's most recent precedent on the matter, City of Ladue v. Gilleo, 512 U.S. 43 (1994). It is also inconsistent with circuit court cases that have taken seriously the requirements that the alternatives indeed be "ample." See Part II.A (discussing such cases from the Second, Sixth, Seventh, Ninth, and D.C. Circuits).

Unfortunately, though, the North Carolina court is not alone in interpreting the "ample alternative channels" prong so feebly. Perhaps because of the subjectivity of the term "ample," some federal circuit court cases have similarly departed from this Court's teachings in City of Ladue, and from the other circuit court decisions we cite above. See Part II.B. This Court ought to grant review to provide lower courts with more guidance about how demanding the "ample alternative channels" analysis should be.

I was glad to see that yesterday the court called for a response in the case, which suggests that at least one justice thinks there might be something to it. I hope to blog more about this as the state's response and Packingham's reply brief come in.