Yesterday, the Supreme Court struck down a North Carolina law that banned registered sex offenders from using social media sites. It’s a rare treat to get a Supreme Court opinion delving into Internet content regulations, and as a bonus, this case enthusiastically embraces Internet exceptionalism. As Justice Alito’s concurrence says plainly, “Cyberspace is different from the physical world.” Whoa!
The Court’s Ruling
North Carolina G.S. §14–202.5 makes it a felony for registered sex offenders 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.” The definition of “commercial social networking” site has four attributes:
* the site operator derives revenue (including ad revenue)
* the site “facilitates the social introduction” of people
* site users can create web pages or personal profiles
* the site provides users a mechanism to communicate with each other
The law excludes sites that (a) provide “only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform,” or (b) have as their ‘primary purpose the facilitation of commercial transactions involving goods or services between [their] members or visitors.’”
The law applies to 20,000 North Carolinans, and the state has prosecuted over 1,000 violators.
The Supreme Court unanimously declares the NC statute unconstitutional. Justice Kennedy wrote a five-judge majority opinion. Justice Alito wrote a three-judge concurrence.
Justice Kennedy says the law couldn’t survive intermediate scrutiny (if that’s even applicable instead of strict scrutiny) because it’s “unprecedented in the scope of First Amendment speech it burdens.” The state argued that the law was necessary to protect against sex offender recidivism, but the court says the law is much more restrictive than an analogous buffer zone in physical space.
Justice Alito criticizes Justice Kennedy’s opinion because of its “undisciplined dicta” and “unnecessary rhetoric.” He prefers analyzing the law as a content-neutral “time/place/manner” restriction. The government has a compelling interest in protecting children from sex predators, but the restrictions are overbroad:
[the law’s] wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child….the North Carolina law has a very broad reach and covers websites that are ill suited for use in stalking or abusing children.
The majority opinion celebrates the ascendancy of social media sites in our society. Justice Kennedy asks what is “the most important places (in a spatial sense) for the exchange of views”? He answers: “today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’—in general and social media in particular.” This implies that social media sites have joined, or even supplanted, traditional public fora as streets and parks.
Justice Kennedy’s opinion also endorses the role of social media sites as vital information resources. Echoing one of the remarkable statements from Reno v. ACLU, Justice Kennedy says: “social media users employ these websites to engage in a wide array of protected First Amendment activity on topics ‘as diverse as human thought.’” He continues:
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.
This is plainly true, and it’s great to see the Supreme Court recognize how important social media has become. However, does this passage signal that access to social media sites has become a fundamental right? In other words, if social media sites are (superior?) substitutes to streets and parks, should citizens be equally guaranteed the right to access them? In general, privately operated websites aren’t considered public fora for First Amendment purposes (though government-operated social media accounts may be–more on that in a moment). This passage might encourage courts to think about these questions more holistically.
* Internet Exceptionalism. Just like the Supreme Court did in 1997 in Reno v. ACLU, the judges embrace Internet exceptionalism (see, e.g., Justice Alito’s “Cyberspace is different from the physical world”). However, the majority and concurrence disagree about whether the Internet’s differences are good or bad.
Like Justice Stevens did in 1997, Justice Kennedy emphasizes the Internet’s positive aspects:
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.
In contrast, Justice Alito emphasizes how the Internet can uniquely facilitate sexual predation:
Several factors make the internet a powerful tool for the would-be child abuser. First, children often use the internet in a way that gives offenders easy access to their personal information—by, for example, communicating with strangers and allowing sites to disclose their location. Second, the internet provides previously unavailable ways of communicating with, stalking, and ultimately abusing children. An abuser can create a false profile that misrepresents the abuser’s age and gender. The abuser can lure the minor into engaging in sexual conversations, sending explicit photos, or even meeting in person. And an abuser can use a child’s location posts on the internet to determine the pattern of the child’s day-to-day activities—and even the child’s location at a given moment….
First, it is easier for parents to monitor the physical locations that their children visit and the individuals with whom they speak in person than it is to monitor their internet use. Second, if a sex offender is seen approaching children or loitering in a place frequented by children, this conduct may be observed by parents, teachers, or others. Third, the internet offers an unprecedented degree of anonymity and easily permits a would-be molester to assume a false identity.
(BTW, Justice Alito makes these factual assertions without any empirical support. Indeed, I think Justice Alito overstates these factors, in some cases by a lot).
Justice Kennedy partially retort to Justice Alito by noting that the Internet, like all new technologies, can be used for both good and evil: “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. The railroad is one example. So it will be with the Internet and social media.”
* What is “social media”? I’ve repeatedly complained that the term “social media,” as a subcomponent of the Internet generally, cannot be defined rigorously. As Justice Alito admits: “it is not easy to provide a precise definition of a ‘social media’ site.” Statutes that have attempted to define “social media” are fatally ambiguous or over-inclusive (or both). For example, California’s employee social media privacy law defined “social media” as all electronic content, both online and off, i.e., including files on a user’s non-networked hard drive.
This opinion highlights the illogic of trying to segregate social media from the rest of the Internet. Justice Alito shows how the NC statute unintentionally (?) swept in Amazon.com’s review functionality, Washington Post’s comment section, and WebMD (I believe these examples came from amicus briefs).
In my Internet Law casebook, I include People v. Lopez, where the court found that the definition of “social media sites” (in the context of probation conditions) was “reasonably certain.” After this opinion, will courts be as confident about the precision of any definition of “social media”?
* What will happen to other states’ sex offender restriction laws? Many other states have restricted registered sex offenders from using social media sites, though the specific laws differ. How does this ruling affect those laws?
Justice Kennedy says that states should be able 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.”
Justice Alito expresses skepticism about this possibility. He says: “if the entirety of the internet or even just “social media” sites are the 21st century equivalent of public streets and parks, then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offenders.” I think Justice Alito is overly pessimistic. States will keep trying to ban sex offenders from social media, and the Supreme Court will surely endorse some of those efforts.
The bigger problem is enforceability of any laws that pass Justice Kennedy’s standard. Imagine a state bans a registered sex offender from attempting to communicate with a person known to be minor, either in a private message or in a message directed to the minor (like a tagged message on Facebook or a Twitter @reply). I think this law would survive constitutional scrutiny, but how will the state proactively monitor compliance? If it’s a private message or the user’s account is private, state enforcers won’t see it at all (unless they log into the offender’s account); and even if the state enforcer sees the tweet or tagged Facebook post, it will take additional work to determine the message was sent to a minor instead an adult (assuming the age information is even determinable). So the state’s job at monitoring possible sex offender recidivism will become more difficult.
[Historical note: the Reno v. ACLU case had a concurrence/dissent by Justice O’Connor that talked about the possible permissibility of “Internet zoning” and the differences between one-to-one online communications and online messages that are broadcast to the world. The discourse in this opinion brought to mind both of these issues, but sadly neither opinion discussed Justice O’Connor’s opinion.]
* Will this opinion affect probation conditions? As illustrated by the Lopez case, judges routinely restrict Internet usage in probation conditions. (I recently blogged about this issue in the In re Mike H. case). Does this opinion signal possible limits to such probation conditions? Justice Kennedy says it’s “troubling” that NC’s 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” (emphasis added). The italicized language suggests that Justice Kennedy did not want to reach the probation conditions issue. However, he also says: “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.” Thus, I think this opinion provides substantial grounds to carve back or eliminate probation conditions restricting social media and Internet usage, and I expect we’ll see a groundswell of cases in the area.
* Can Trump block Twitter followers? Our president has blocked numerous followers from his @RealDonaldTrump Twitter account (which I suggest he rename to @ReallyThinSkinnedDonaldTrump). See a selection of the blockees. Is it legal for him, as a government official, to block his constituents from following him? If the account were his personal account, the answer might be yes; but even the White House has admitted that @RealDonaldTrump is an official account. And blocking a follower can suppress their speech; at minimum, it blocks an @reply from showing up in the message thread. Thus, if a Twitter account is a limited public forum, blocking accounts will likely violate the users’ free speech rights.
This opinion doesn’t directly address the issue, but it does say that “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.” As part of discussing social media’s ascendancy as the modern quintessential public forum, the court is signaling that suppressing constituent speech on social media would be impermissible censorship. I imagine the lawsuit challenging Trump’s Twitter blocking will highlight this passage.
Venkat’s comments: I love the Court’s rhetoric around the vast possibilities made available by sites such as Facebook, Twitter, and LinkedIn. Justice Kennedy talks about the “nature of revolution in thought” unfolding on Facebook, LinkedIn, and Twitter. *Record Scratch* *Freeze Frame* As always, judges are a bit behind the times, and this is no exception.
The majority opinion is imbued with forum language. I have not re-read Reno v. ACLU recently, but to the extent this is new, it’s noteworthy. Perhaps the Court’s language has embraced forum terminology as social networks have evolved? Appeals courts have not definitively addressed the status of public Facebook pages as fora, and this language suggests that they could be limited public forums at the very least. The same goes for the President’s Twitter feed! (As Eric notes, the majority opinion has some language that’s relevant to the question of whether the President may block Twitter users.)
A fun exercise when reading a ruling like this is to think about ways the legislature could accomplish the result that the judges thought was appropriate. The law got derailed in its overly broad definition of social networking site, and both sets of judges were troubled that the definition could include sites such as Amazon, the Washington Post, and WebMD.
Case citation: Packingham v. North Carolina, No. 15–1194 (U.S. Sup. Ct. June 19, 2017).
Source: Eric Goldman Legal