| Packingham v. North Carolina | |
|---|---|
 | |
| Argued February 27, 2017 Decided June 19, 2017 | |
| Full case name | Lester Gerard Packingham, Petitioner v. North Carolina |
| Docket no. | 15–1194 |
| Citations | 582U.S. 98 (more) 137 S. Ct. 1730; 198L. Ed. 2d 273 |
| Argument | Oral argument |
| Opinion announcement | Opinion announcement |
| Case history | |
| Prior | State v. Packingham, 368 N.C. 380, 777S.E.2d 738 (2015);cert. granted, 137 S. Ct. 368 (2016). |
| Holding | |
| A statute prohibitingregistered sex offenders from accessingsocial media websites impermissibly restricts lawful speech in violation of theFirst Amendment. | |
| Court membership | |
| |
| Case opinions | |
| Majority | Kennedy, joined by Ginsburg, Breyer, Sotomayor, Kagan |
| Concurrence | Alito (in judgment), joined by Roberts, Thomas |
| Gorsuch took no part in the consideration or decision of the case. | |
| Laws applied | |
| U.S. Const. amend. I | |
Packingham v. North Carolina, 582 U.S. 98 (2017), is a case in which theSupreme Court of the United States held that aNorth Carolina statute that prohibitedregistered sex offenders from usingsocial media websites wasunconstitutional because it violated theFirst Amendment to theU.S. Constitution, which protectsfreedom of speech.[1]
In 2010, Lester Gerard Packingham, a registered sex offender, posted onFacebook under a pseudonym to comment favorably on a recent traffic court experience. Police then identified Packingham and charged him with violating North Carolina's law. Packingham moved to dismiss the charges, arguing that the state's law violated the First Amendment. The trial court dismissed this motion and ultimately convicted Packingham. A state appellate court initially reversed the trial court, holding that the law did violate the First Amendment, but theNorth Carolina Supreme Court, the state's highest court, disagreed and reinstated the conviction.
In June 2017, the U.S. Supreme Court unanimously reversed the North Carolina Supreme Court's judgment. In themajority opinion authored by JusticeAnthony Kennedy, the Court held thatsocial media—defined broadly to include Facebook,Amazon.com,The Washington Post, andWebMD—is a "protected space" under the First Amendment for lawful speech.[2] The Court offered that North Carolina could protect children through less restrictive means, such as prohibiting "conduct that often presages asexual crime, like contacting aminor or using a website to gather information about a minor".[3]
In 2008, the state of North Carolina passed a law that made it a felony for aregistered 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".[4] The law defined a "commercial social networking Web site" using four criteria. Specifically, the website must:
The law exempted websites that "Provid[e] only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform", as well as websites that have as their primary purpose "the facilitation of commercial transactions involving goods or services between [their] members or visitors".[6]
In 2002, Lester Gerard Packingham was convicted of taking "indecent liberties with a child", a felony that required him to register as a sex offender.[7] A North Carolina court sentenced him to 10–12 months in prison with 24 months ofsupervised release. He was given no other special instructions on his behavior outside of prison other than to "remain away from" the minor.[1] In 2010, after a state court dismissed a traffic ticket against Packingham, he submitted a post onFacebook under the name "J. R. Gerrard", stating: "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!"[8] TheDurham Police Department identified Packingham as the author of the post after cross-checking the time of the post with recently dismissed traffic tickets, and agrand jury indicted him for violating the North Carolina statute.[8]
Initially, Packingham moved to dismiss his indictment, arguing that it violated the First Amendment.[9] ANorth Carolina Superior Court judge denied this motion, and he was convicted of violating the North Carolina social media law.[10] Packingham appealed his conviction to theNorth Carolina Court of Appeals, which reversed the trial court's decision in 2013.[10] Applyingintermediate scrutiny,[11] the court of appeals determined that North Carolina's law violated the First Amendment because it was too broad, applying to all registered sex offenders regardless of whether the offender had committed a crime involving a minor or whether the offender was a continuing threat of harm to minors.[10] The court of appeals also stated that the law had been defined broadly enough to prohibit a registered sex offender from conducting a wide array of Internet activity, such as "conducting a 'Google' search, purchasing items on Amazon.com, or accessing a plethora of Web sites unrelated to online communication with minors".[10]
In 2015, theNorth Carolina Supreme Court, the state's highest court, reversed the court of appeals, holding that the law was "constitutional in all respects".[10][12] The North Carolina Supreme Court found that the statute was a "limitation on conduct" and did not impede anyfree speech. The state had a vested interest in “forestalling the illicit lurking and contact of minors” by registered sex offenders and potential future victims, and sustained Packingham's conviction.[11]
Packingham filed a petition for a writ ofcertiorari with the Supreme Court of the United States. The federal government also filed a brief recommending that the Supreme Court grantcertiorari, arguing that the North Carolina Supreme Court incorrectly decided the case in favor of the state. The U.S. Supreme Court grantedcertiorari in October 2016.Amicus briefs in support of Packingham were filed by the libertarianCato Institute and theAmerican Civil Liberties Union. The North Carolina Supreme Court filed a brief supporting its prior decision, urging the importance of protecting minors in the Internet age from being stalked online.[13]
The oral argument took place in February 2017. Packingham’s lawyer, David T. Goldberg, argued that the law banned “vast swaths of First Amendment activity”, went too far in restricting which Internet sites could be accessed, and forbade use of the Internet in general. The law targeted speech on some of the platforms that Americans use most often, Goldberg noted, and that under the law Packingham could not even useTwitter to read the myriad messages discussing his own case. He further noted that the law imposes punishment without regard to whether the offender actually did anything wrong.[14]
North Carolina’s seniordeputy Attorney General, Robert C. Montgomery, argued for the state, and claimed that communication through social media sites is a “crucial channel”.[14] JusticeSonia Sotomayor asked Montgomery to provide evidence as to the claim that by giving Packingham Internet privileges, he would commit another crime.Justice Stephen Breyer added that “It seems to be well-settled law that the state can’t (bar usage) unless there is a 'clear and present danger'."[14]
In June 2017 the Supreme Court delivered a judgment in favor of Packingham, unanimously voting to reverse the state court.[15][16] JusticeAnthony Kennedy explained the decision: "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." He continued that "By prohibiting sex offenders from using those websites, North Carolina with one broad stroke 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." CitingAshcroft v. Free Speech Coalition as a precedent, Kennedy also wrote: "It is well established that, as a general rule, the Government 'may not suppress lawful speech as the means to suppress unlawful speech'."
Justice Samuel Alito wrote an opinion concurring in the judgment, joined byJohn Roberts andClarence Thomas. While Alito agreed that the law at issue violated the First Amendment, he noted that there are reasonable scenarios for which legal bans for sex offenders can be placed, such as for sites targeted at teenagers.[2]
Packingham v. North Carolina was one of the first U.S. Supreme Court cases to analyze the role of the First Amendment with respect to social media use.[17] According to Ashutosh Bhagwat, a law professor at theUC Davis School of Law, as of 2018Packingham is one of only two cases heard by theRoberts Court that directly address new technologies up to that point, the other beingBrown v. Entertainment Merchants Association (2011) with respect to video games.[18] Bhagwat speculated that this might change in the future, as "recent calls to regulate 'fake news' and otherwise impose filtering obligations on search engine and social media companies will inevitably raise important and difficult First Amendment issues".[19]
In an article published in theNorth Dakota Law Review, Katie Miller wrote that thePackingham decision may be used to challenge laws and restrictions in other states similar to the one in North Carolina.[20] For example, in a case calledUnited States v. Rock (2017), a defendant who pleaded guilty to distributing child pornography citedPackingham in an appeal of one of the conditions of hissupervised release, which prevented him from possessing or using a computer. TheU.S. Court of Appeals for the D.C. Circuit rejected that argument on the basis that the defendant's release condition was not a "post-custodial restriction" as it was inPackingham, stating that "'a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens'".[20]
Madeleine Burnette-McGrath, in an article published in theOhio Northern University Law Review, wrote that "Packingham adopts a new avenue for government regulation, allowing the government to interfere with individual social media entities and their ability to regulate speech that occurs on their websites"[21][22] Specifically,Packingham delineates anintermediate scrutiny test for governmental regulation of Internet speech, under which a government agent "need only put into effect a law that is both narrowly tailored to and includes a substantial government interest".[23] Burnette-McGrath described this as a "low standard" that may inspire states to "implement new laws under the guise of substantial government interest or of being narrowly tailored" at the detriment of free speech on the Internet.[23]