In Packingham v. North Carolina, 582 US ___ (2017), the U.S. Supreme Court unanimously invalidated a North Carolina law that prohibited sex offenders from accessing social media websites. The Court explained that social media users, including sex offenders, access websites covered under the law for a wide range of lawful activities.

Packingham, a sex offender, was charged for posting on Facebook

Authorities charged Lester Packingham for violating the law after he posted a message on Facebook thanking God after the dismissal of a traffic ticket. The problem for Packingham is that he is a convicted sex offender, having been convicted of taking indecent liberties with a 13-year-old when he was a 21-year-old college student.

After his conviction and suspended sentence, Packingham appealed. The North Carolina Court of Appeals reversed, finding that the law was not narrowly tailored. The State appealed to the state high court, which reversed and found the law “constitutional in all respects.”

Court ruled that the law was not narrowly tailored

Packingham then sought review from the Supreme Court. In the opinion for the Court, Justice Anthony Kennedy emphasized that the law barred many legitimate uses of websites and threatened free speech in cyberspace, which he analogized to a traditional public forum. Citing Reno v. ACLU (1997), Kennedy wrote that the law threatened expression on the “vast democratic forums of the Internet.” 

Kennedy said that even if the North Carolina was content neutral, it failed intermediate scrutiny because the law was far from narrowly tailored. “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,” he wrote.

Kennedy compared the North Carolina law to the vastly overbroad airport regulation struck down by the Court in Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc. (1987), which had prohibited all First Amendment activities in the airport. Kennedy concluded that the North Carolina law was a “complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture.”

Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Clarence Thomas, wrote an opinion concurring in the judgment. Alito agreed that the law was far too broad but criticized Kennedy’s opinion for its “undisciplined dicta” and “unnecessary rhetoric.” Alito questioned Kennedy’s language comparing cyberspace to a traditional public forum.

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