Banishing registered offenders from participation in life online essentially precludes them from access to the public square, the Court observed.  This is a prohibition too extensive in its sweep even where the state has an important interest in protecting children.  Packingham v. North Carolina, No. 15-1194.  June 19, 2017.

In 2010, Lester Packingham, using a pseudonym, posted to his Facebook page a proclamation of spiritual praise and gratitude for his deliverance from the snares of traffic violations.  This moment of exuberance was noted by a local law enforcement official who became aware that Packingham had traffic issues resolved at about the same time claimed by the Facebook poster.  

While superficially Packingham’s post is neither no more no less banal than the millions of other posts presented each day, following a grand jury’s indictment, a petit jury convicted Packingham of a felony.  Packingham was found to have accessed the internet in contravention of the North Carolina statute prohibiting any registered sex offender from accessing websites where minors may join or create pages displaying information about themselves.

No evidence was adduced indicating that Packingham had any knowledge of or intention to access the internet for any purpose related to any harm to a minor.  Packingham’s preclusion from using the internet was likely to be decades long, as registration might continue for thirty years beyond the time he pled guilty, as a 21-year-old, to intercourse with a thirteen year old.  

Packingham’s conviction was reversed by the North Carolina Court of Appeals, which struck down the statute as unconstitutional because its breadth is, in the appellate court’s view, far in excess of any restriction that might reasonably serve the state’s important interest in protecting minors from sexual predation.

The North Carolina Supreme Court disagreed, finding the statute wholly constitutional, as it concerns only websites where information about minors might be obtained and provided for meaningful alternatives so that an offender would not be entirely precluded from using the internet.

The United States Supreme Court today declared the North Carolina statute to be wholly unconstitutional, as it is, in the Court’s view, of such extraordinary breadth as to bar entirely access to the public sphere provided by the internet, where billions of people are free to exchange ideas on any and all topics of their choosing.  The statute as written might be construed to apply not only to the social media sites that it targeted, but also to major commercial, informational, and journalistic enterprises.  Because of the breadth of this sweep, the statute could not survive even intermediate scrutiny.  The statute was not narrowly tailored — indeed, it was in essence an outright ban — to serve the government’s important interest in protecting children from abuse.  The Court noted that it had never upheld a statute of this breadth.  

To deny Packingham and others similarly situated the opportunity to participate in the world online would preclude them from engaging fully in the life of the virtual public square that is vital to daily existence of so many, the Court observed.  To banish an individual from participation would be to inhibit rehabilitation.  The bar seemed particularly harsh, the Court noted, where punishment for any offense had already been completed.  

Although it stressed that the questions were not before the Court, the Court nonetheless noted that the state was not without recourse in promulgating a law that would be narrow enough to serve its needs.  As criminal behavior is not protected by the First Amendment, the court intimated that the state might consider how certain behavior — contacting a minor or seeking information about a minor online — might be addressed by a criminal statute without running afoul of First Amendment protections.  

Justice Alito, Joined by Chief Justice Roberts, and Justice Thomas, Wrote Separately, Concurring in the Judgment

Justice Alito noted that the Court was correct in finding the sweep of the North Carolina of such breadth as to be fatal:  far more than necessary to protect children would be swept up in the statute as now enacted.

Arriving at the same conclusion as the majority did not leave Justice Alito satisfied with the journey.  Sparing no sensibilities, Justice Alito criticized the majorities’ “undisciplined dicta” and “loose rhetoric.”  Analogizing cyberspace to the public square — where even the most notorious sex offenders may visit — may eviscerate the states’ capacities to proscribe the use of the internet by those who put children at risk.  The Court failed, in its desire to compare the internet to physical public areas, to attend to the practical realities that impact the new instrument that is the internet.

The majority noted that this case presents one of its first forays into the world of cyberspace, making caution in proceeding to decide what the First Amendment requires (or forbids) of great importance.  In the concurring justices’ view, the majority failed to heed its own caution.


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