July 3, 2017
By David Post
A few weeks ago, (click here) the Supreme Court released its opinion in Packingham v. North Carolina, holding 8-0 that a North Carolina law prohibiting previously convicted sex offenders from accessing or using “social networking” websites violates the First Amendment....
...The law in question made 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.”
*”Commercial social networking Web site” was defined quite broadly; in brief, it covered any website that “facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges” by allowing users to create “personal profiles,” and that provides users with “mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.”
The statute was purportedly designed to prevent ex-offenders from “gathering information about minors on the Internet” and using that information to make inappropriate or unlawful contact with them. All eight Justices agreed (with us) that the statute was not sufficiently “narrowly tailored” to serve that purpose.
It wasn’t even a close call. The court (Justice Anthony M. Kennedy writing for himself and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Elena Kagan and Sonia Sotomayor, with Justice Samuel A. Alito Jr. concurring joined by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas) described the statutory prohibition as “unprecedented in the scope of First Amendment speech it burdens.”...