Lester Gerard Packingham was forced to register as a sex offender following a guilty plea involving charges relating to a 13-year-old girl. As part of that conviction, he became subject to a North Carolina law which forbade him from accessing any “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.” And while we can bore deeply into the details, suffice it to say that such sites are basically defined as the ones where you can create a personal page and communicate with others.
Undaunted, Packingham set up a Facebook page using a pseudonym. In 2010, he went onto the site to exclaim “Man God is Good!” after he had a traffic ticket dismissed … and the local police cross-referenced the date with court actions and, eventually, the folks in the crime lab figured out it was Packingham. He disputed the charges, arguing that the law was unconstitutionally broad.
Today, the Supreme Court unanimously agreed that North Carolina had gone too far. Basically, Justice Kennedy wrote for a five-Justice majority, The Internet Is Important, and this law forbids too much involvement in modern society:
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. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.”
In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.
Of course, he noted, nothing forbids a state from passing “specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.”
Justice Alito, writing for himself, the chief, and Justice Thomas, basically said slow down the puffery, Anthony. They were fine with striking the law down just definitionally—that by its terms the law also included sites like Amazon.com, the Washington Post, and WebMD, places which do not “provide a convenient jumping off point for conversations that may lead to abuse,” lack private messaging and thus “reduces the possibility of a child being secretly lured into an abusive situation,” nor did they “give sex offenders opportunity to gather personal details about a child.” But beyond that? They want Kennedy dial back the grandiosity a smidge:
[I]f the entirety of the internet or even just “social media” sites are the 21st century equivalent of public streets and parks, then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offenders. May a State preclude an adult previously convicted of molesting children from visiting a dating site for teenagers? Or a site where minors communicate with each other about personal problems? The Court should be more attentive to the implications of its rhetoric for, contrary to the Court’s suggestion, there are important differences between cyberspace and the physical world.
And compared to physical space, Justice Alito flagged three problems with online sex offenders:
First, it is easier for parents to monitor the physical locations that their children visit and the individuals with whom they speak in person than it is to monitor their internet use. Second, if a sex offender is seen approaching children or loitering in a place frequented by children, this conduct may be observed by parents, teachers, or others. Third, the internet offers an unprecedented degree of anonymity and easily permits a would-be molester to assume a false identity.
What kind of grandiosity? I suppose I should let Justice Kennedy’s rhetoric speak for himself:
The nature of a revolution in thought can be that, in its early stages, even its participants may be unaware of it. And when awareness comes, they still may be unable to know or foresee where its changes lead. Cf. D. Hawke, Benjamin Rush: Revolutionary Gadfly 341 (1971) (quoting Rush as observing: “‘The American war is over; but this is far from being the case with the American revolution. On the contrary, nothing but the first act of the great drama is closed’”).
So too here. 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. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.
This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.
Sweet mystery of life, indeed.
(This case, too, was argued before Justice Gorsuch’s swearing-in, so he sat it out.)