Opinion analysis: Court invalidates ban on social media for sex offenders

In 2002, Lester Packingham became a convicted sex offender at the age of 21, after he pleaded guilty to taking indecent liberties with a child – having sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he posted on Facebook to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that makes it a felony for a convicted sex offender to use social-networking websites, such as Facebook and Twitter, that allow minors to create accounts. Today Packingham has something else to be grateful for, and he can take to social media to express that appreciation, because the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

In an opinion that was joined in full by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, Justice Anthony Kennedy began by outlining what he described as a “fundamental principle of the First Amendment”: that everyone should “have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” And even if once it may have been hard to determine which places are “the most important” “for the exchange of views,” Kennedy concluded, it isn’t hard now. Instead, he reasoned, it is “clear” that the Internet and, in particular, social media provide such opportunities, with “three times the population of North America” now using Facebook. Emphasizing that Packingham’s case “is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet,” Kennedy warned that the court should “exercise extreme caution before suggesting that the First Amendment provides scant protection for access” to ubiquitous social-networking sites like Facebook and Twitter.

Here, Kennedy reasoned, North Carolina’s law cannot pass constitutional muster. Kennedy agreed with the state that sex offenders should not be able to have access to “vulnerable victims” like children – the stated purpose of the law. And he took as a given, for the sake of argument, that states could “enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime.” But North Carolina’s law goes too far, he explained, because it stifles “lawful speech as the means to suppress unlawful speech.” By barring sex offenders from using social-networking sites, he continued, the state “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.” “In sum,” Kennedy concluded, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”

Justice Samuel Alito, in an opinion that was joined by Chief Justice John Roberts and Justice Clarence Thomas, agreed with Kennedy – to a point. Much like Kennedy, Alito acknowledged that states have an interest in protecting children from abuse; moreover, he added, “it is legitimate and entirely reasonable for States to try to stop abuse from occurring before it happens.” But, he noted, the North Carolina law under which Packingham was convicted must ultimately be deemed unconstitutional because it also bars sex offenders from gaining access to “a large number of websites” – including, but not limited to, Amazon, The Washington Post, and WebMD – “that are most unlikely to facilitate the commission of a sex crime against a child.”

Having said that, however, Alito also disputed any suggestion that cyberspace is, as he put it, “the 21st century equivalent of public streets and parks,” which would leave states with “little ability to restrict the sites that may be visited by even the most dangerous sex offenders.” Arguing that “there are important differences between cyberspace and the physical world,” he lamented what he described as “loose rhetoric” and “undisciplined dicta” in the majority opinion. So even though the justices all agreed on the result in today’s decision, it may be harder for them to find common ground in future cases involving the First Amendment and the Internet.