The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A few weeks ago, the Supreme Court released its opinion in Packingham v. North Carolina, holding 8-0 that a North Carolina law prohibiting previously convicted sex offenders from accessing or using "social networking" websites violates the First Amendment.
The Volokh Conspiracy had more involvement in this case (on the victorious side, I'm happy to note) than usual; Eugene Volokh and a number of his students at UCLA's Amicus Clinic wrote an amicus brief supporting the grant of certiorari (a brief that I joined, along with a number of other law professors), and, after the Court granted cert, I wrote (along with Perry Grossman) an amicus brief supporting the petitioner for several tech policy organizations (Electronic Frontier Foundation, Public Knowledge, and the Center for Democracy and Technology).
The law in question 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."
*"Commercial social networking Web site" was defined quite broadly; in brief, it covered any website that "facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges" by allowing users to create "personal profiles," and that provides users with "mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger."
The statute was purportedly designed to prevent ex-offenders from "gathering information about minors on the Internet" and using that information to make inappropriate or unlawful contact with them. All eight Justices agreed (with us) that the statute was not sufficiently "narrowly tailored" to serve that purpose.
It wasn't even a close call. The court (Justice Anthony M. Kennedy writing for himself and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Elena Kagan and Sonia Sotomayor, with Justice Samuel A. Alito Jr. concurring joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas) described the statutory prohibition as "unprecedented in the scope of First Amendment speech it burdens."
[S]ocial media users employ these websites to engage in a wide array of protected First Amendment activity on topics "as diverse as human thought." … Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. 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. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to "become a town crier with a voice that resonates farther than it could from any soapbox." … [T]o foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.
The state did not meet its burden—it did not, to be candid, even come close to meeting its burden, hence the 8-0 result—of demonstrating that "this sweeping law is necessary or legitimate" to serve its purpose.
[T]he State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture. It is well established that, as a general rule, the Government "may not suppress lawful speech as the means to suppress unlawful speech." … That is what North Carolina has done here. Its law must be held invalid.
It's really not all that complicated. Here's one way to look at it. Because the North Carolina legislature believed—based mostly upon rumor, hearsay and prejudice, but put that aside for now—that some previously convicted sex offenders will use information obtained on social-networking sites for unlawful purposes, it banned all sex offenders from using social networking sites for any purpose, including lawful and First Amendment-protected communicative activity (political speech, religious speech, commercial speech, etc.), a great deal of which, to put it mildly, takes place on social-networking sites these days.
That is a really odious principle on which to base a law. Talk about "burning down the house to roast the pig." I'm glad the court rejected it, firmly (and unanimously). You can't "suppress lawful speech as the means to suppress unlawful speech." Exactly.
One interesting question here: How, in heaven's name, could any court (or, for that matter, any legislature) think that this scheme comports with the First Amendment? But the North Carolina Supreme Court had so held, in a decision I described at the time as preposterous. Now that the Supreme Court has unanimously overturned its decision, I trust that the members of the North Carolina court (except for Justices Robin E. Hudson and Cheri Beasley, who dissented from the original ruling) are suitably chastened and embarrassed.**
** And just to add to their embarrassment (not that I take any particular pleasure in calling out judges, but the North Carolina court's decision here was really a disgrace, and deserves all the opprobrium we can heap on it): The Supreme Court didn't even condescend to mention the ridiculous theory that the North Carolina court had propounded to support its holding that the statute was constitutional: that the statutory prohibition on access to "social networking websites" was a regulation of conduct, not speech (and, therefore, outside the purview of the First Amendment entirely).
I don't think the majority or concurring opinions break any particular new ground, doctrinally. This statute—like many of the laws concerning what sex offenders may and may not do—was preposterously overly broad from the get-go, and the only question in my mind was whether any justices could possibly fail to see that. (Answer: No, they could not.)
It's hard to gauge how significant the decision might prove to be over the long term. It will undoubtedly prove extremely useful and important in other cases—and there are many of them out there, across the country—challenging similar restrictions on Internet use by registered sex offenders.
Farther afield? Well, the court used some ringing words about the Internet and its significance as a First Amendment platform:
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. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. … Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.
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, Reno v. ACLU, 521 U. S. at 868 (1997), and social media in particular.
To the extent this reflects the court's willingness to recognize strong First Amendment protection for the right to access the Internet, it could call other regulations involving Internet access restrictions into question. For example, my colleagues Annemarie Bridy and Harold Feld have each suggested that provisions of the Digital Millennium Copyright Act requiring Internet service providers to terminate Internet access for "repeat [copyright] infringers" could face renewed scrutiny after Packingham.
On the other hand, one man's ringing words are another's—specifically, Alito's—"loose rhetoric" and "undisciplined dicta." The concurring justices (Alito, Roberts, Thomas) agreed with the majority that the NC statute "sweeps far too broadly to satisfy the demands of the Free Speech Clause," and they had no particular problem with the way the majority characterized and undertook the First Amendment analysis in the case. Rather unusually, I think, their disagreement focused entirely on nuance, characterization and rhetoric:
While I thus agree with the Court that the particular law at issue in this case violates the First Amendment, I am troubled by the Court's loose rhetoric. After noting that "a street or a park is a quintessential forum for the exercise of First Amendment rights," the Court states that "cyberspace" and "social media in particular" are now "the most important places (in a spatial sense) for the exchange of views." …
The Court declines to explain what this means with respect to free speech law, and the Court holds no more than that the North Carolina law fails the test for content-neutral "time, place, and manner" restrictions. But if the entirety of the Internet or even just "social media" sites are the 21st century equivalent of public streets and parks, then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offenders.
Well, that may be true—but if the Internet has become the "quintessential forum for the exercise of First Amendment rights," like parks or public sidewalks or public libraries, why shouldn't states have "little ability to restrict the sites that may be visited" by anyone? Isn't that the point of the First Amendment?
And those (like me) who have followed the cyberlaw debates over the years will be interested to see that there's a very interesting echo here of one of the foundational issues in cyberlaw, "Exceptionalism" vs. "Unexceptionalism," The majority takes the Unexceptionalist position: the Internet is just like a park—a public place where people can go to express themselves; it's just like real space, and the same principles should apply to it.
The concurring justices are the Exceptionalists:
The Court should be more attentive to the implications of its rhetoric for, contrary to the Court's suggestion, there are important differences between cyberspace and the physical world. I will mention a few that are relevant. … [I]t is easier for parents to monitor the physical locations that their children visit and the individuals with whom they speak in person than it is to monitor their internet use. … [Unlawful conduct in real space is more likely to] be observed by parents, teachers, or others. … [T]he internet offers an unprecedented degree of anonymity and easily permits a would-be molester to assume a false identity.
The Court is correct that we should be cautious in applying our free speech precedents to the Internet. … Cyberspace is different from the physical world, and if it is true, as the Court believes, that "we cannot appreciate yet" the "full dimensions and vast potential" of "the Cyber Age," we should proceed circumspectly, taking one step at a time. It is regrettable that the Court has not heeded its own admonition of caution.