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The Supreme Court heard oral argument in Packingham v.
North Carolina, a case questioning whether a North Carolina law banning registered sex offenders from using social media violates First Amendment free speech rights.
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.
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). 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.” …
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. Kennedy writing for himself and Justices Ruth Bader Ginsburg, Stephen G. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind.
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 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.
These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. Because the North Carolina legislature believed — based mostly upon rumor, hearsay and prejudice, but put that aside for now — that 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.
Packingham had a clean record until he was arrested in 2010 for celebrating the dismissal of a parking ticket by thanking God on his Facebook page.
In North Carolina it is a felony for registered sex offenders to “access” any social networking website not restricted to adults, which includes Facebook, Twitter, and Linked In.
In 2002 Lester Packingham pled guilty to having sex with a 13-year-old he was a 21-year-old college student.
He received a suspended sentence, two years probation, and had to register as a sex offender.