Georgetown Law
Technology Review

INTRODUCTION 

On June 19th, 2017, the Supreme Court unanimously overturned a North Carolina law1N.C. Gen. Stat. § 14–202.5 (2015). (hereinafter referred to as “statute”) that effectively instituted a social media ban for registered sex offenders.2Packingham v. North Carolina, 137 S. Ct. 1730 (2017). The statute 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.”3N.C. Gen. Stat. § 14–202.5(a) (2015). The Court held that the statute violated the First Amendment by improperly restricting lawful speech.4Packingham, 137 S.Ct. 1730 (2017). Justice Kennedy delivered the opinion of the Court, while Justice Alito was joined in concurrence by Chief Justice Roberts and Justice Thomas.5Id. Although both the Court and the concurrence agreed the statute was unconstitutional, the opinions revealed divergent approaches towards free speech rights on the Internet that could prove significant in future cases. The Court analogized access to the Internet to public streets and parks, finding that the Internet was no different than traditional public forums and adopting a broad interpretation of First Amendment protections.6Id. at 1735. The concurrence, on the other hand, opined that the Internet is substantially different than traditional methods of expression and will likely need to be regulated more closely in the future.7Id. at 1743 (Alito, J., concurring). This comment argues that the more expansive interpretation taken by the Court will prove more effective in protecting free speech, especially as the technological platforms at issue in the case continue to grow and evolve.

STATEMENT OF FACTS

In 2008, North Carolina passed a statute restricting sex offenders’ access to any “commercial social networking Web site,” the definition of which included popular social media sites such as Facebook and Twitter.8 N.C. Gen. Stat. § 14–202.5(b) (2011). In 2010, Lester Gerard Packingham had a traffic ticket dismissed and subsequently posted a status update on his Facebook page under the name “J.R. Gerard,” praising God for his good fortune.9Packingham, 137 S.Ct. at 1734. This post caught the eye of local Durham police investigating registered sex offenders violating the statute, and after further inquiry it was confirmed that “J.R. Gerard” was indeed Lester Gerard Packingham.10Id. In 2002, Mr. Packingham (then twenty-one) had been convicted of taking indecent liberties with a thirteen-year-old girl.11Id. This conviction required him to register as a sex offender, and that status placed his 2010 Facebook activities in violation of the statute.12Id.

PROCEDURAL HISTORY

Packingham was indicted for violating the statute based on the Facebook post.13Id. He pled guilty and received a suspended sentence after his motion to dismiss the indictment on First Amendment grounds was dismissed.14Id. He appealed to the North Carolina Court of Appeals, which struck down the statute as not narrowly tailored and therefore a violation of the First Amendment.15State v. Packingham, 777 S.E.2d 738, 742 (2015), rev’d by Packingham v. North Carolina, 137 S.Ct. 1730 (2017) (summarizing the procedural history). The North Carolina Supreme Court, with two dissenters, reversed.16Id. at 751. Holding that the law was “constitutional in all respects,” the court found that the statute was narrowly tailored enough to serve the state’s legitimate interest in keeping registered sex offenders from gathering information about minors.17Id. at 741. According to the court, the statute permitted access to similar websites that required its users to be adults, such as local broadcast news websites.18Id. at 747. The dissenters rejected the statute as overbroad and a clear violation of the First Amendment.19Id. at 752. The United States Supreme Court granted certiorari and held oral arguments on February 27, 2017.20Packingham v. North Carolina, 137 S.Ct. 1730 (2017).

HOLDING

The Court reversed the North Carolina Supreme Court and declared the statute unconstitutional and violative of the First Amendment.21Id. The Court emphasized the principle that “all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.”22Id. at 1735. The Court summarized the vast informational capabilities of popular social media and networking sites such as Facebook, Twitter, and LinkedIn, all sites that were inaccessible to registered sex offenders under the North Carolina law.23Id. While acknowledging the seriousness of the crimes committed by registered sex offenders, the Court ultimately concluded that “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”24Id. at 1737. The Court situated its ruling in the context of a rapidly changing technological environment.25Id. at 1736. Recognizing the nascent, but developing relationship between the Internet and First Amendment, the limited Supreme Court precedent on point, and the speed at which the Internet develops, the Court held the North Carolina statute overbroad and unconstitutionally restrictive of First Amendment rights.26Packingham, 137 S.Ct. 1730 (2017).

The Contested Language

The crux of the debate between the Court and the concurrence was introduced near the beginning of the Court’s opinion. The Court analogized the Internet to traditional “quintessential forums” of public exchange of ideas, such as streets or parks.27Id. at 1735 The Court then explained that in the modern world, cyberspace generally and social media specifically constitute today’s “most important places (in a spatial sense) for the exchange of views.”28Id. Thus, the Internet should receive as much constitutional protection as a public forum.29Packingham, 137 S.Ct. 1730 (2017). The Court’s opinion planted five justices squarely on one side of a hotly contested area in Internet law: how the Internet should be viewed for First Amendment purposes. Justice Alito’s concurrence, meanwhile, outlined the other side of the debate.

CONCURRING OPINION

Justices Alito, joined by Justice Thomas and Chief Justice Roberts, concurred that the North Carolina law was overbroad, but strongly rebuked the Court’s “undisciplined dicta.”30Id. at 1738 (Alito, J., concurring). The Court’s analogizing of the Internet to parks and streets troubled Alito, as he contended the practical implications of this treatment could render states powerless in attempts to regulate the Internet.31Id. Alito utilized intermediate scrutiny appropriate for content-neutral time, place, and manner regulations: the law must serve a legitimate state interest and it must not burden substantially more speech than is necessary to serve that interest.32Id. While Alito believed that protecting children from sexual predators is a compelling state interest, he found North Carolina’s law deficient because it burdened much more speech than necessary to serve that interest by blocking access to a number of sites that are “most unlikely to facilitate the commission of a sex crime against a child.”33Id. at 1741.

In so finding, Alito concurred with the Court. However, he was concerned by the implications of the Court’s analysis. According to Alito, the Court’s attempt to analogize cyberspace to the real world missed important distinctions between the two.34Id. at 1743–44. He listed several examples: parents are much more able to monitor their children in the physical world than in cyberspace, a sex offender approaching children is much more likely to be seen by others in the real world, and cyberspace’s anonymity allows sex offenders to assume false identities.35Id. at 1743–44. These differences, among others, convinced Alito that the Court’s “loose rhetoric” will have dangerous implications in future cases by preventing states from adequately protecting their citizens.36Id. at 1743.

ANALYSIS

While Justice Alito raised valid concerns, the Court’s view of the Internet is more protective of traditional freedoms associated with the First Amendment and should become the governing standard for these types of cases in the future. Which one of these ideas takes hold has potentially enormous importance going forward. How First Amendment principles are applied to cyberspace will be a critical question going forward, as technology advances and devices continue to evolve. The “Internet of Things” and other advances in connectivity portend a future in which almost every device we use connects to the Internet, and could potentially be used to voice opinions or interact with others.

It is against this background that the Court’s position seems strongest. The Court does engage, at times, in sweeping rhetoric. However, this rhetoric and the Court’s use of the public parks and streets analogy serves to tie the Court’s First Amendment analysis to familiar precedents. In 1997, the Supreme Court issued its first major ruling on regulation of the Internet in Reno v. ACLU.37Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). In Reno, the Court described email and websites as constituting a “vast democratic forum” that the First Amendment protected from blanket restrictions.38Id. at 868. The Court analogized email to telephone calls or letters while distinguishing the Internet from “invasive” mediums like radio or television.39Id. at 851–53. Reno stakes out a view of the Internet as “a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers,” a view which informs the Court’s opinion.40Id. at 853. The Court’s language places speech in cyberspace under the long line of traditional First Amendment protections. By taking this stance, the Court indicates that cyberspace should not be treated differently than other modes of expression for First Amendment purposes.

These protections, of course, are exactly what Alito wants to avoid. Justice Alito believes that cyberspace is fundamentally different from other past methods of First Amendment expression. For Alito, the North Carolina law was clearly unconstitutional. However, it appears that he could more easily find a scaled-down version to be constitutional than those in the majority could. The disagreement between the two is not necessarily tied to differing interpretations of past case law: instead, it is a disagreement over possible future implications. Alito draws three examples for how the Internet differs from the physical world.

First, it is easier for parents to monitor the physical locations and interactions in person than it is over the Internet. Second, potential bad actors are more easily observed in the physical world than online: if a sex offender approaches children or loiters in a place frequented by children, this may be observed by parents, teachers, or others. Third, the Internet offers an unprecedented degree of anonymity and easily permits a potential bad actor to assume a false identity.41Packingham, 137 S. Ct. at 1743–44.

At first glance, these seem like compelling examples. However, Justice Alito fails to explain a true distinction between these examples and their real-world analogs. In some instances, setting up effective filters and content-blocking software on phones or computers may actually be easier for parents than to monitor their children’s physical locations or who they speak with, especially when the parent is working or the child is at school. While anonymity is easy on the Internet, a would-be molester could just as easily provide a false name to a child. Anonymity or identity falsification is also possible through letters, notes, or text communications. Alito’s examples illustrate the dangers parents face protecting their children: however, they do not effectively demonstrate that the challenges the Internet presents are uniquely dangerous and demand more restriction on First Amendment rights.

The Court’s position will protect First Amendment rights going forward. A view of the Internet as a public environment will protect the thriving and diverse “vast democratic forum” the Court envisions. Alito’s position that cyberspace demands different, and perhaps less vigorous, First Amendment protection could lead to a steady erosion of First Amendment rights online in the future.