High Court Strikes Down Social Media Ban for Sex Offenders

In Packingham v. North Carolina, 582 U. S. ____ (2017), the U.S. Supreme Court held that a North Carolina law prohibiting registered sex offenders from accessing social media runs afoul of the First Amendment. The Court’s decision, which highlights the growing role of internet communications in First Amendment jurisprudence, was unanimous.

Facts of the Case

A North Carolina law, N.C. Gen. Stat. § 14-202.5, makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites. The law specifically makes it a felony for persons on the state’s sex offender registry 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 on the commercial social networking Web site.” The law does not require the state to prove that the defendant had contact with (or gathered information about) a minor, intended to do so, or accessed a website for any illicit or improper purpose.

Petitioner Lester Packingham was prosecuted and convicted under the law for “accessing” Facebook.com in 2010. Packingham wrote the following post: “Man God is Good! How about I got so much favor they dismiss the ticket before court even started. No fine, No court costs, no nothing spent…Praise be to GOD, WOW! Thanks JESUS!” Packingham appealed his conviction on First Amendment grounds. While the State Court of Appeals struck down the statute on First Amendment grounds, the State Supreme Court reversed.

Court’s Decision

The U.S. Supreme Court concluded that the “North Carolina statute impermissibly restricts lawful speech in violation of the First Amendment.” Justice Anthony Kennedy wrote on behalf of the unanimous court.

In his opinion, Justice Kennedy noted that the case was “one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet.” Accordingly, he acknowledged that the “Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”

The Court also acknowledged that the Internet is the modern version of the town square. “Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers relatively unlimited, low-cost capacity for communication of all kinds to users engaged in a wide array of protected First Amendment activity on any number of diverse topics,” Justice Kennedy wrote.

With regard to the North Carolina statute, the Court concluded that the provision is not “narrowly tailored to serve a significant governmental interest.” As Justice Kennedy explained:

[T]he statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another on any subject that might come to mind. With one broad stroke, North Carolina 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. Foreclosing access to social media altogether thus pre- vents users from engaging in the legitimate exercise of First Amendment rights. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives. 

Finally, the Court concluded that North Carolina failed to meet its burden “to show that this sweeping law is necessary or legitimate to serve its purpose of keeping convicted sex offenders away from vulnerable victims,” Justice Kennedy wrote. “No case or holding of this Court has approved of a statute as broad in its reach.”