Finding that the modern Internet, and especially its social media sites, are bringing about a “revolution in thought,” the Supreme Court on Monday created broad constitutional shelter for exchanging or exploring ideas electronically. In a unanimous decision, the Justices struck down a sweeping North Carolina law that flatly banned convicted sex offenders from all access to social media.
Even three Justices who did not support the main opinion agreed that the state law at issue “has a staggering reach” and they agreed it was invalid. But they voiced worry that the lead opinion, written by Justice Anthony M. Kennedy, had been “undisciplined” in its discussion of how far the First Amendment goes to protect expression via the Internet.
Justice Kennedy’s opinion, speaking for himself and four other Justices, made clear that states would remain free to pass narrower laws that made it a crime to use the Internet explicitly to carry out a crime, such as child molestation. But any such laws, the decision made clear, cannot simply close the Internet to those convicted of sexual crimes.
The state law at issue made it a separate serious crime for one convicted of sexual abuse to gain access to any commercial “social networking web site” where the offender knows the site allows minor children to become members or to create a personal web page. All members of the court agreed that that was too broad.
What divided the court was Justice Kennedy’s soaring phrases about how the era of digital expression required very expansive protection under the First Amendment’s free speech clause. “We now may be coming to the realization,” Kennedy wrote, “that the Cyber Age is a revolution of historic proportions….a revolution in thought.” At this early stage, the opinion added, “we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.”
Thus, he said, the court had to be conscious in approaching constitutional questions about how access to the means of communications in that new age can be regulated by government. “The court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”
The Kennedy opinion marveled at the growth of social media sites, noting that Facebook alone has 1.79 billion active users, “almost three times the population of North America.”
The case of Packingham v. North Carolina will thus become one of the court’s most important precedents governing new modes of communication, and in that sense will far outlast the individual case of Lester Gerard Packingham, a North Carolinian who, at age 16, pleaded guilty to having sex with a 13-year-old girl. As a result, he was required to register as a sex offender. In 2008, he became subject to a new state law that make it a crime for such a registered sex offender to use social media sites.
In 2010, he was convicted of violating that law when, following a state court’s dismissal of a traffic ticket he had received, he logged on to Facebook and praised that decision, saying “Man God is Good!…Thanks JESUS!” He was not accused of having contacted a minor in entering his message.
Justice Kennedy’s wide-ranging opinion had the full support of a clear majority – himself and Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.
The decision struck down the state law, and thus nullified Packingham’s conviction for violating the no-Internet law. He had receive a suspended jail sentence after his conviction.
Justice Samuel A. Alito, Jr., writing for himself and Chief Justice John G. Roberts, Jr., and Clarence Thomas, went along with the specific ruling that the North Carolina law was unconstitutional, but protested the breadth of the Kennedy opinion’s language.
The newest Justice, Neil M. Gorsuch, did not take part in the decision. The case had come up before he joined the court in April.
(This post also appeared today at Constitution Daily, the blog of the National Constitution Center in Philadelphia.)