Packingham v. North Carolina
(582 US __)
SUPREME COURT OF THE UNITED STATES
LESTER GERARD
PACKINGHAM, PETITIONER v. NORTH CAROLINA
on writ of
certiorari to the supreme court of north carolina
June 19, 2017
Justice Kennedy delivered the
opinion of the Court.
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.” 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.” Second, it “[f]acilitates the social
introduction between two or more persons for the
purposes of friendship, meeting other persons, or
information exchanges.” 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.” 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.”
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.” 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.”
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.
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. 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 Facebook.com 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!”
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.
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....
II
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. The
Court has sought to protect the right to speak in this
spatial context. A basic rule, for example, is that a
street or a park is a quintessential forum for the
exercise of First Amendment rights. Even
in the modern era, these places are still essential
venues for public gatherings to celebrate some views,
to protest others, or simply to learn and inquire.
While in the past there may have been
difficulty in identifying the most important places
(in a spatial sense) for the exchange of views, today
the answer is clear. It is cyberspace—the “vast
democratic forums of the Internet” in general, and
social media in particular. Seven in ten American
adults use at least one Internet social networking
service. One of the most popular of these sites is
Facebook, the site used by petitioner leading to his
conviction in this case. According to sources cited to
the Court in this case, Facebook has 1.79 billion
active users. This is about three times the population
of North America.
Social media offers “relatively
unlimited, low-cost capacity for communication of all
kinds.” On Facebook, for example, users can debate
religion and politics with their friends and neighbors
or share vacation photos. On LinkedIn, users can look
for work, advertise for employees, or review tips on
entrepreneurship. And on Twitter, users can petition
their elected representatives and otherwise engage
with them in a direct manner. Indeed, Governors in all
50 States and almost every Member of Congress have set
up accounts for this purpose. In short, social
media users employ these websites to engage in a wide
array of protected First Amendment activity on topics
“as diverse as human thought.”
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. 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.
III
This background informs the
analysis of the North Carolina statute at issue. Even
making the assumption that the statute is content
neutral and thus subject to intermediate scrutiny, the
provision cannot stand. In order to survive
intermediate scrutiny, a law must be “narrowly
tailored to serve a significant governmental
interest.” In other words, the law must not “burden
substantially more speech than is necessary to further
the government’s legitimate interests.”
For centuries now, inventions
heralded as advances in human progress have been
exploited by the criminal mind. New technologies, all
too soon, can become instruments used to commit
serious crimes.
There is also no doubt that, as this
Court has recognized, “[t]he sexual abuse of a child
is a most serious crime and an act repugnant to the
moral instincts of a decent people.” And it is clear
that a legislature “may pass valid laws to protect
children” and other victims of sexual assault “from
abuse.” The government, of course, need not simply
stand by and allow these evils to occur. But the
assertion of a valid governmental interest “cannot, in
every context, be insulated from all constitutional
protections.”
It is necessary to make two
assumptions to resolve this case. First, given the
broad wording of the North Carolina statute at issue,
it might well bar access not only to commonplace
social media websites but also to websites as varied
as Amazon.com, Washingtonpost.com, and Webmd.com. The
Court need not decide the precise scope of the
statute. It is enough to assume that the law applies
(as the State concedes it does) to social networking
sites “as commonly understood”—that is, websites like
Facebook, LinkedIn, and Twitter.
Second, this opinion should not be
interpreted as barring a State from enacting more
specific laws than the one at issue. Specific criminal
acts are not protected speech even if speech is the
means for their commission. Though the issue is not
before the Court, it can be assumed 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. Specific laws of
that type must be the State’s first resort to ward off
the serious harm that sexual crimes inflict. (Of
importance, the troubling fact that the law imposes
severe restrictions on persons who already have served
their sentence and are no longer subject to the
supervision of the criminal justice system is also not
an issue before the Court.)
Even with these assumptions about the
scope of the law and the State’s interest, 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 about it on any subject
that might come to mind. 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.
IV
The primary response from the State
is that the law must be this broad to serve its
preventative purpose of keeping convicted sex
offenders away from vulnerable victims. The State has
not, however, met its burden to show that this
sweeping law is necessary or legitimate to serve that
purpose.
It is instructive that no case or
holding of this Court has approved of a statute as
broad in its reach. The closest analogy that the State
has cited is Burson v. Freeman (1992)
. There, the Court upheld a prohibition on campaigning
within 100 feet of a polling place. That case gives
little or no support to the State. The law in Burson
was a limited restriction that, in a context
consistent with constitutional tradition, was enacted
to protect another fundamental right—the right to
vote. The restrictions there were far less onerous
than those the State seeks to impose here. The law in
Burson meant only that the last few seconds
before voters entered a polling place were “their own,
as free from interference as possible.” And the Court
noted that, were the buffer zone larger than 100 feet,
it “could effectively become an impermissible burden”
under the First Amendment.
The better analogy to this case is
Board of Airport Comm’rs of Los Angeles v. Jews
for Jesus (1987), where the Court struck down
an ordinance prohibiting any “ First Amendment
activities” at Los Angeles International Airport
because the ordinance covered all manner of protected,
nondisruptive behavior including “talking and reading,
or the wearing of campaign buttons or symbolic
clothing.” If a law prohibiting “all protected
expression” at a single airport is not constitutional,
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
our modern society and culture.
It is well established that, as a
general rule, the Government “may not suppress lawful
speech as the means to suppress unlawful speech.” That
is what North Carolina has done here. Its law must be
held invalid.
The judgment of the North Carolina
Supreme Court is reversed, and the case is remanded
for further proceedings not inconsistent with this
opinion.
It is so ordered.