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Social media gained a new level of First Amendment respect on June 19 as the U.S. Supreme Court struck down a North Carolina law that barred registered sex offenders from posting on social networking sites.
In a unanimous decision written by Justice Anthony Kennedy, the court in Packingham v. North Carolina made numerous references to the importance of social media as a ubiquitous source of news and a forum for the exchange of views.
“Social media users employ these websites to engage in a wide array of protected First Amendment activity on topics ‘as diverse as human thought,’” Justice Kennedy wrote for the court. “A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.”
Kennedy also wrote, “While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.”
Justice Samuel Alito Jr., while agreeing with the outcome, criticized Kennedy’s lofty rhetoric in a concurring opinion.
“The court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks,” Alito wrote. “And this language is bound to be interpreted by some to mean that the states are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites …. I am troubled by the implications of the court’s unnecessary rhetoric.” Chief Justice John Roberts Jr. and Justice Clarence Thomas joined Alito’s concurrence.
In the case before the court, Lester Packingham was convicted in 2002 of a sex offense involving a minor and was placed on the state’s sex offender registry. In 2010, after he posted a message on his Facebook account, he was indicted on charges of violating the state law that bars the use of online social media by anyone on the state’s registry if the online site allows minors to participate. A jury found him guilty and he was sentenced to six to eight months in prison.
On appeal, the North Carolina Supreme Court ruled in 2015 that the law did not violate the First Amendment because it regulated conduct, not speech, and was content-neutral. The decision also noted that Packingham could access sites like Paula Deen Network and Shutterfly because they require users to be 18 or older.
Before the Packingham case came to the court, the justices have not had many occasions to opine about social media. In 2015, the court in Elonis v. United States ruled in favor of a Pennsylvania man arrested for threatening his estranged wife on Facebook, but it skirted the First Amendment issue involved.
During oral argument in February, justices discussed social media with the same respect usually reserved for the likes of town criers and print newspapers that once were the main source of news for Americans.
“It is a crucially important channel of political communication,” Justice Elena Kagan said, noting that in addition to President Donald Trump, all 50 governors and all 100 U.S. senators and all members of the House of Representatives have Twitter feeds. “It is embedded in our culture as ways to communicate and ways to exercise our constitutional rights.”
Stanford Law School lecturer David Goldberg argued on behalf of Packingham before the court. Senior North Carolina deputy attorney general Robert Montgomery defended the statute during oral argument.
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