There’s a lot happening on social media. From photos of adorable pugs to the occasional threat of nuclear war by a head of state, social media has a vast range of information and ideas. Indeed, it’s not controversial to claim that Facebook and Twitter are now coming to occupy the role in public discourse that the town square did for the Founders generations ago.

Social media’s importance to public discourse raises a natural question: how far do the First Amendment’s protections apply in the digital age? Do the same extensive protections that apply to literal parks and town squares apply online? Or will the rise of the Internet involve more limitations on free expression?

A clue as to the answer to that question came a few months ago from the Supreme Court in Packingham v. North Carolina, 137 S. Ct. 1730 (2017). Packingham is, as the Court noted in its opinion, one of the first Supreme Court cases to “address the relationship between the First Amendment and the modern Internet.”

The case arose after Lester Packingham, a convicted sex offender living in North Carolina, won a ticket in traffic court. Excited, he logged onto his Facebook account and posted the following: “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent. . . . . .Praise be to GOD, WOW! Thanks JESUS!”

Unfortunately for Mr. Packingham, North Carolina had a law that made it a felony registered sex offenders from accessing social media sites. Even more unfortunately for Mr. Packingham, his post caught the eye of a Durham detective. As a result of his post, he was promptly indicted, convicted by a jury, and sentenced to a suspended prison sentence.

Packingham appealed, arguing that the law violated the First Amendment. Although this argument received a less than receptive audience from North Carolina’s state courts, on appeal the Supreme Court struck down the North Carolina law. The Court assumed without deciding that the law was subject to intermediate scrutiny because it was a law regulating speech that was neutral as to the content of that speech.  To survive intermediate scrutiny, North Carolina had to show that the law (1) furthered an important government interest, and (2) was narrowly tailored to serve that interest.

The Court said that North Carolina had an important government interest here, in protecting children from sex offenders. But where North Carolina’s law fell apart was on the narrow tailoring issue. In banning sex offenders from accessing  social media, the Court explained that it “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.” Given that North Carolina had less sweeping ways of protecting children from registered sex offenders—like prohibiting offenders from using social media to contact children, for example, or prohibiting offenders from using social media to gather information about a child—the law failed the narrow tailoring requirement.

The Supreme Court’s opinion in Packingham is significant even for those of us who are not registered sex offenders. It marks a clear sign that the Court is unwilling to treat the Internet as being different than other public forums, and will continue to protect First Amendment rights in what Justice Kennedy amusingly calls the “Cyber Age.”

—Nigel Halliday



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