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Packingham v. North Carolina

United States Supreme Court

June 19, 2017


          Argued February 27, 2017


         North Carolina law makes it a felony for a registered 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." N. C. Gen. Stat. Ann. §§14-202.5(a), (e). According to sources cited to the Court, the State has prosecuted over 1, 000 people for violating this law, including petitioner, who was indicted after posting a statement on his personal Facebook profile about a positive experience in traffic court. The trial court denied petitioner's motion to dismiss the indictment on the ground that the law violated the First Amendment. He was convicted and given a suspended prison sentence. On appeal, the State Court of Appeals struck down §14-202.5 on First Amendment grounds, but the State Supreme Court reversed.

         Held: The North Carolina statute impermissibly restricts lawful speech in violation of the First Amendment. Pp. 4-10.

(a) A fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers "relatively unlimited, low-cost capacity for communication of all kinds, " Reno v. American Civil Liberties Union, 521 U.S. 844, 870, to users engaged in a wide array of protected First Amendment activity on any number of diverse topics. The Internet's forces and directions are so new, so protean, and so far reaching that courts must be conscious that what they say today may be obsolete tomorrow. Here, in one of the first cases the Court has taken to address the relationship between the First Amendment and the modern Internet, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium. Pp. 4-6.
(b) This background informs the analysis of the statute at issue. Even assuming that the statute is content neutral and thus subject to intermediate scrutiny, the provision is not "' "narrowly tailored to serve a significant governmental interest."'" McCullen v. Coakley, 573 U.S.__, __. Like other inventions heralded as advances in human progress, the Internet and social media will be exploited by the criminal mind. It is also clear that "sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people, " Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244, and that a legislature "may pass valid laws to protect children" and other sexual assault victims, id., at 245. However, the assertion of a valid governmental interest "cannot, in every context, be insulated from all constitutional protections." Stanley v. Georgia, 394 U.S. 557, 563.
Two assumptions are made in resolving this case. First, while the Court need not decide the statute's precise scope, it is enough to assume that the law applies to commonplace social networking sites like Facebook, Linkedln, and Twitter. Second, the Court assumes that the First Amendment permits a State to enact 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.
Even with these assumptions, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another on any subject that might come to mind. With one broad stroke, North Carolina 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. Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights. Even convicted criminals-and in some instances especially convicted criminals-might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives. Pp. 6-8.
(c) The State has not met its burden to show that this sweeping law is necessary or legitimate to serve its purpose of keeping convicted sex offenders away from vulnerable victims. No case or holding of this Court has approved of a statute as broad in its reach. The State relies on Burson v. Freeman, 504 U.S. 191, but that case considered a more limited restriction-prohibiting campaigning within 100 feet of a polling place-in order to protect the fundamental right to vote.
The Court noted, moreover, that a larger buffer zone could "become an impermissible burden" under the First Amendment. Id., at 210. The better analogy is Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569. If an ordinance prohibiting any "First Amendment activities" at a single Los Angeles airport could be struck down because it covered all manner of protected, nondisruptive behavior, including "talking and reading, or the wearing of campaign buttons or symbolic clothing, " id., at 571, 575, it follows with even greater force that the State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of modern society and culture. Pp. 9-10.

368 N. C. 380, 777 S.E.2d 738, reversed and remanded.

          KENNEDY, J., delivered the opinion of the Court, in which GlNSBURG, BREYER, SOTOMAYOR, and Kagan, JJ., joined. ALITO, J., filed an opinion concurring in the judgment, in which ROBERTS, C. J., and THOMAS, J., joined. GORSUCH, J., took no part in the consideration or decision of the case.


          Kennedy Justice

         In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter. The question presented is whether that law is permissible under the First Amendment's Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment.



         North Carolina law makes it a felony for a registered 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." N. C. Gen. Stat. Ann. §§14-202.5(a), (e) (2015). A "commercial social networking Web site" is defined as a website that meets four criteria. First, it "[i]s operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site." §14-202.5(b).

         Opinion of the Court

         Second, it "[facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges." Ibid. Third, it "[a]llows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Web site." Ibid. And fourth, it "[p]rovides users or visitors . . . mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger." Ibid.

         The statute includes two express exemptions. The statutory bar does not extend to websites that "[p]rovid[e] only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform." §14-202.5(c)(1). The law also does not encompass websites that have as their "primary purpose the facilitation of commercial transactions involving goods or services between [their] members or visitors." §14-202.5(c)(2).

         According to sources cited to the Court, §14-202.5 applies to about 20, 000 people in North Carolina and the State has prosecuted over 1, 000 people for violating it. Brief for Petitioner 6-8.


         In 2002, petitioner Lester Gerard Packingham-then a 21-year-old college student-had sex with a 13-year-old girl. He pleaded guilty to taking indecent liberties with a child. Because this crime qualifies as "an offense against a minor, " petitioner was required to register as a sex offender-a status that can endure for 30 years or more. See §14-208.6A; see §14-208.7(a). As a registered sex offender, petitioner was barred under §14-202.5 from gaining access to commercial social networking sites.

         In 2010, a state court dismissed a traffic ticket against petitioner. In response, he logged on to and posted the following statement on his personal profile:

"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!" App. 136.

         At the time, a member of the Durham Police Department was investigating registered sex offenders who were thought to be violating §14-202.5. The officer noticed that a "'J.R. Gerrard'" had posted the statement quoted above. 368 N. C. 380, 381, 777 S.E.2d 738, 742 (2015). By checking court records, the officer discovered that a traffic citation for petitioner had been dismissed around the time of the post. Evidence obtained by search warrant confirmed the officer's suspicions that petitioner was J. R. Gerrard.

         Petitioner was indicted by a grand jury for violating §14-202.5. The trial court denied his motion to dismiss the indictment on the grounds that the charge against him violated the First Amendment. Petitioner was ultimately convicted and given a suspended prison sentence. At no point during trial or sentencing did the State allege that petitioner contacted a minor-or committed any other illicit act-on the Internet.

         Petitioner appealed to the Court of Appeals of North Carolina. That court struck down §14-202.5 on First Amendment grounds, explaining that the law is not narrowly tailored to serve the State's legitimate interest in protecting minors from sexual abuse. 229 N.C.App. 293, 304, 748 S.E.2d 146, 154 (2013). Rather, the law "arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal." Ibid. The North Carolina Supreme Court reversed, concluding that the law is "constitutional in all respects." 368 N. C, at 381, 777 S.E.2d, at 741. Among other things, the court explained that the law is "carefully tailored ... to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information about minors." Id., at 389, 777 S.E.2d, at 747. The court also held that the law leaves open adequate alternative means of communication because it permits petitioner to gain access to websites that the court believed perform the "same or similar" functions as social media, such as the Paula Deen Network and the website for the local NBC affiliate. Id., at 390, 777 S.E.2d, at 747. Two justices dissented. They stated that the law impermissibly "creates a criminal prohibition of alarming breadth and extends well beyond the evils the State seeks to combat." Id., at 401, 777 S.E.2d, at 754 (opinion of Hudson, J.) (alteration, citation, and internal quotation marks omitted).

         The Court granted certiorari, 580 ...

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