Packingham v. North Carolina: Registration, Social Media and the First Amendment
In Packingham v. North Carolina, the Supreme Court unanimously struck down a North Carolina law that made it a felony for registered sex offenders to engage in certain internet activity.
Attorney Ron Frey is licensed in North Carolina; see our page on North Carolina internet crime defense.
The court stressed that the “sweeping law” would bar those on the registration from visiting sites such as Facebook & Twitter, but also a multitude of sites ranging from Amazon to WebMD, as well as the sites of many media outlets. This has the effect of broadly preventing the engagement of first amendment speech, without advancing the state’s goal of protecting the public from recidivist offenders.
The court recognized that social media plays a vital role in our society and noted that “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.”
What the Court Generally Held, and Why It Still Matters
The case, decided on June 19, 2017, involved N.C. Gen. Stat. § 14-202.5, which made it a felony for a registered sex offender to access commercial social networking websites that permit minors to create accounts. Justice Kennedy wrote the opinion of the Court, joined by four other justices. Justice Alito, joined by Chief Justice Roberts and Justice Thomas, agreed that the law was unconstitutional but wrote separately, and Justice Gorsuch did not take part, so the judgment was 8-0.
Even assuming the law was content neutral, the Court generally held that it failed intermediate scrutiny because it was not narrowly tailored to serve a significant governmental interest. The Court described social media as part of “the modern public square” and found that the law burdened far more speech than necessary. At the same time, the Court said a state may generally enact more specific, narrowly tailored laws, such as laws prohibiting contacting a minor or using a website to gather information about a minor.
At the time of this writing, Packingham is still cited when courts consider internet restrictions, including conditions of federal supervised release. Some federal appeals courts, such as the Second and Third Circuits, have relied on it in setting aside broad internet bans that were not tailored to the individual case. Others, such as the Eleventh Circuit, have generally viewed it as distinguishable when a restriction is limited to a term of supervised release and tailored to the offense. How these issues apply in a particular case generally depends on the facts, so it is wise to discuss them with Attorney Ron Frey.