On 'ample alternative channels of communication,' the First Amendment, and social networking

A couple of weeks ago, I joined 16 law professors in an amicus brief (authored by Eugene Volokh and several of his students) urging the Supreme Court to grant certiorari in the case of North Carolina v. Packingham. [Here's Eugene's posting about the brief.] The case, in a nutshell:

North Carolina bans registered sex offenders from using or accessing any social networking website that allows under-18-year-olds to post. This includes, of course, the vast bulk of the social networking universe—Facebook, Twitter, Instagram, LinkedIn, Reddit, along with many, many other such sites. The ban is not limited to people who are in prison or on probation or parole (whose First Amendment rights are sharply reduced because of that); it applies even to people who have finished serving their sentences, and who possess, at least in principle, the same First Amendment rights as you and I. Nor is the law limited to sex offenders who had committed crimes against minors (though I think that too would be unconstitutional). Rather, the law makes it a crime for any registered sex offender to either post to such a site or even read it, on the theory that the law is needed "to prevent registered sex offenders from prowling on social media and gathering information about potential child targets."

There are, as Volokh succinctly put it in the earlier posting, "many First Amendment problems" with the N.C. court's decision rejecting a challenge to the constitutionality of this prohibition.[**] The amicus brief, though, focused on only one of them: the court's holding that the prohibition is a "reasonable" restriction on speech because it leaves "ample alternative channels" for the speech of persons covered by the ban. Maybe you can't post (or even access any posts) on Facebook or Twitter or Instagram or Reddit [or NYTimes.com or the Volokh Conspiracy, for that matter, all of whom allow persons under the age of 18 to post/access) … but "the Web offers numerous alternatives that provide the same or similar services that defendant could access without violating" the statute.

It seems crazy to me—imagine trying to run for public office, or participate in someone else's campaign for public office, or complain to your City Councilperson, or start a petition drive to get a new streetlight on your corner … without being able to access any of the major social networking sites. Not impossible, sure—but it seems quite far-fetched to suggest that there are "ample alternatives" out there on the Web for you to accomplish these tasks.

Fortunately, we have Supreme Court precedent on our side: City of Ladue v. Gilleo (1994), which invalidated a city ordinance banning homeowners from displaying signs on their property. The city argued that the ordinance left people "free to convey their desired messages by other means, such as hand-held signs, 'letters, handbills, flyers, telephone calls, newspaper advertisements, bumper stickers, speeches, and neighborhood or community meetings.'" But these alternatives, the court held, were inadequate because they tended to convey a substantively different message, were not as cost-effective or failed to reach the speaker's intended audience.

If handbills and bumper stickers and hand-held signs etc. are not adequate alternatives to front-yard signs, it's hard to see how one could conclude that the Web offers "numerous alternatives providing the same or similar services" to those who cannot access Facebook, Twitter, Reddit, Instagram, NYTimes.com, the Volokh Conspiracy …

But I guess reasonable people can disagree with us on this point. Harvard Prof. Noah Feldman does, over at the Chicago Tribune. He writes:

Supreme Court precedent requires that a ban on speech allow "ample alternative channels" for expression. The North Carolina law says that registered sex offenders can't access social networking sites that allow underage members—which would rule out all the big networks like Facebook, Twitter, Instagram, Snapchat and Tumblr. Are there ample alternative channels? The professors say no.

I say … yes. There's no disputing the ubiquity of social media. But there are still other ways to express your ideas and communicate with other humans. Without social media, I can still create content and publish it. I can read a vast array of opinions of others. And I can communicate directly with other people, through e-mail and other platforms. …

What's most troubling about the professors' argument is that it treats a specific medium as necessary to free speech. When it came to the residential signs in the Ladue case, the real problem was that there's a specific social meaning attached to putting up a political sign in your front yard: It's speech that uniquely is associated with you. But that's not true of your Facebook page, because in the absence of a Facebook account you could create your own website with identical content. True, the means of accessing a website are different—but that's why we call them alternatives, which the Ladue rule allows. (Emphasis added.)

But that's simply incorrect. You can't create a website with identical content to your Facebook page if you're not on Facebook, because your Facebook page contains a great deal of content contributed by others—that's what makes it a social networking site (as opposed to a newspaper or a blog). To say that the political sign in my front yard is "uniquely associated with me" but my Facebook page is not rather seriously misapprehends the nature of a Facebook page. Communicating via website, or email, is not an alternative to communicating via social networking, because social networking is a social activity in a way that other media are not—that's precisely what has made it so powerful and so indispensable for a vast array of communication. The information on my Facebook page can't be replicated elsewhere because it is a joint product, a network product. And the ability to create such a joint, network product is denied to those on the registry—there are virtually no alternatives open to them to communicate with others in this manner. Open and shut case, to my eyes.

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** Here's another First Amendment problem in the Packingham opinion: The court held that the social-networking restriction is not a regulation of "speech" at all, but rather a regulation of "conduct." It wrote:

[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."

That cannot possibly be correct. It is precisely like saying that a ban on using public libraries or a prohibition on buying books regulates conduct with only an "incidental burden" on speech, because it only covers the act of walking through the library or bookstore doors (and only "incidentally" burdens the speech that you might be able to engage in once inside the building). Or that a ban on printing newsletters only regulates "conduct" (the actions involved in running a printing press) with only an "incidental" burden on the speech that you might be able to engage in after you turn the machines on. It is disturbing, to me, that a state Supreme Court might actually take this view, but such is the plight of the First Amendment these days.