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Yes, There is the Right to Facebook (Or Tweet) in the Constitution

6.19.2017

We had previously written about Packingham v. North Carolina, where the Supreme Court of the United States confronted the question of whether, in an effort to protect minors, States can bar individuals on the sex offender registry from using large sections of the Internet. The restriction at issue was N.C.G.S. § 14-202.5, a North Carolina statute that prohibits registered sex offenders from using websites available to minors.

The North Carolina Supreme Court had previously held that the statutory restrictions were permissible, since the loss of channels such as Facebook, LinkedIn, and even the New York Times, still left ample avenues of communications for the restricted individuals.

Writing for a unanimous United States Supreme Court, Justice Kennedy disagreed. The Court acknowledged the State’s vital interest in protecting children. Nevertheless, it found that the restrictions at issue were overbroad. “North Carolina with one broad stroke bars access to what for many are the principal sources of 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.” This holding highlights that the distinction between cyber and brick-and-mortar realms is increasingly outmoded in contemporary First Amendment analysis.

Social media is a powerful tool: as Justice Kennedy explains, it allows anyone with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.” In Packingham, the statutory restrictions extended beyond particular channels that may have been particularly germane to the statute’s protective purpose, such as teen-oriented discussion boards, to general-interest sites such as WebMd and WashingtonPost.com. The Court found that such sweeping restrictions foreclosed too many channels of communication. It rejected the State’s argument that other venues, such as the websites of local TV affiliates, provided a viable alternative to the foreclosed channels. As such, the North Carolina statute was held to be unconstitutional.

Revealingly, Justice Alito, joined by Chief Justice Roberts and Justice Thomas, concurred in the result only. While they also would have found the North Carolina statute overbroad, the concurrence found Justice Kennedy’s language too broad. Rather than shut the door to all future restrictions, the concurring justices preferred a more cautious and incremental approach.

Packingham states that it is the first Supreme Court decision to directly address the First Amendment implications of Internet speech. While some may quibble with that characterization – as Reno has long been cited in this area – it is clear that whether or not Packingham is the first word on the issue, it will be far from the last.

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