Earlier this week, the Supreme Court heard oral argument in Packingham v. North Carolina, a case about whether North Carolina can make it a crime for registered sex offenders to access commercial social networking websites.  Packingham v. North Carolina is an interesting case with significant First Amendment implications.  The Court will decide not only what level of First Amendment scrutiny applies to “access” restrictions on speech, but will have to contend with the question of whether speech can be restricted as a means of preventing crimes.

 

 

Background and Issues Presented

Intended to prevent child exploitation facilitated by gathering information about and targeting specific minors, North Carolina’s law criminalizes a convicted sex offender’s access to social media websites where users create profiles and interact with each other.  This law, which affects approximately 20,000 North Carolina residents, applies to anyone registered as a sex offender regardless of whether his or her sex offense involved minors or the use of computers.

Petitioner, Lester Gerard Packingham, a registered sex offender, was convicted under North Carolina’s statute for a Facebook post in which he celebrated escaping a traffic ticket and claimed “God is Good!”  This speech, entirely protected otherwise, subjected Packingham to criminal sanctions because the speech was published on his Facebook profile.  In addition to prohibiting Packingham from using Facebook, North Carolina’s law prohibits registered sex offenders from such speech activities as following the President’s Twitter feed, or searching for a job on LinkedIn.

The North Carolina Supreme Court was quite (and alarmingly) confused in its application of First Amendment doctrine, labeling the law as a restriction on conduct but then applying speech protections to determine whether the law was unconstitutional.  The North Carolina Supreme Court ultimately upheld the conviction against a First Amendment challenge because there were ample channels of communication for sex offenders to communicate their views even without social media websites.  The North Carolina court cited websites such as The Paula Deen Network as permissible for sex offenders to access.   As an amicus brief written by First Amendment law professors noted, “[t]his looks more like a parody of the ‘ample alternative channels’ analysis than a serious application of that analysis.”

At the very least, the Supreme Court has an opportunity to clarify and organize First Amendment doctrine.  The two major issues in the case are:  1) Does the access restriction target core protected speech, or is the speech regulation merely a time, place, and manner restriction?;  and (2) does the regulation survive the scrutiny that applies?

The answer to issue one determines what level of constitutional scrutiny applies to decide issue two.  Strict scrutiny, applied only to core speech restrictions, would invalidate the law unless the government could show that the law was narrowly tailored to further a compelling government interest.  Intermediate scrutiny, which would apply in some form to restrictions on content-neutral time, place, and manner restrictions, would invalidate the law unless the law did not burden more speech than necessary and left open ample alternative channels for speech.

Prior to reading the oral argument transcript, just based on the briefs, my view was that the Court might well apply strict scrutiny to invalidate this law.  The law targets one specific, and unusually stigmatized and punished, group for a ban on access to a vital means of information gathering and communication.  The government is generally not permitted to discriminate against the identity of the speaker when enacting speech restrictions.  However, the Court might also determine that, because this is an access regulation, it restricts only the time, place, and manner of speech and the government’s interest is unrelated to the suppression of information.  Even under the more deferential scrutiny that would then apply, however, I believe the Justices will strike down North Carolina’s law.  As Petitioner’s brief noted, “[i]t is hard to imagine that a government would impose, or a court would uphold, a similarly sweeping, criminal ban directed at any other group of people.”

Oral Argument: Justice by Justice

Justice Sotomayor:  Perhaps seeking guidance on a way out of the muddled, interlocking First Amendment maze, Justice Sotomayor asked Petitioner’s counsel what his best argument was – was the best argument that the statute was overbroad, that it failed to meet even lower scrutiny, etc.  Petitioner’s counsel answered that they were all good arguments, to which Justice Kennedy noted Elizabeth Barrett Browning’s “Let me count the ways.”  Justice Sotomayor seemed friendly to Petitioner’s arguments, offering help at various points.

Ultimately, in answering Justice Sotomayor’s critical question, Petitioner’s counsel focused on the fact that the statute was not narrowly tailored, an argument that could work even under a more deferential level of scrutiny.  In response, like many of the Justices, Justice Sotomayor worried that a more narrowly tailored statue would not be effective in deterring child exploitation, but she seemed more concerned that a statute like this could then be applied to convicted criminals of all stripes.

Justice Sotomayor seems like a solid vote to strike down the law.  She told North Carolina’s counsel that his case was built upon layers of speculation and statistical inherence.

Justice Kennedy:  Justice Kennedy came at Petitioner’s counsel fairly quickly, asking whether this social media prohibition would be permissible as a condition of parole, to which Petitioner conceded yes, because of the limited time attached to parole restrictions.  Getting at the heart of what types of restrictions can constitutionally be placed upon sex offenders, he also later asked whether the state could monitor their Internet activity to see whether they are communicating with minors.  Petitioner’s counsel answered that this would be a “home run” for the state from a First Amendment perspective (but perhaps not from a Fourth Amendment perspective), although I think someone’s protected, innocent speech would be severely chilled by constant government monitoring.  Packingham’s very speech in this case was antagonistic to the government; he celebrated the dismissal of his traffic ticket.

Overall, however, Justice Kennedy seemed inclined to strike this statute down; he just wanted a coherent method to be able to do so.  He noted that these social networking sites are the modern equivalent of the public square.  He also told North Carolina’s counsel that his offering of the state’s best case on point “does not help you at all.”

Justice Ginsburg:  Justice Ginsburg, concerned for the children, teased out a number of interesting hypotheticals with Petitioner’s counsel.  She wondered if depriving sex offenders of First Amendment rights was different than the voting or gun restrictions placed on convicted felons.  She asked whether the law would be permissible if the law narrowed the prohibition to communications with a minor.  Petitioner’s counsel, like with Justice Kennedy’s parole question, conceded this point, focusing on how much was being restricted and for how long.  Counsel maintained that the issue for narrow tailoring is the percentage of suppressed speech that implicates the government’s interest.

Justice Ginsburg was primarily focused on how much access the statute actually barred.  Unless North Carolina’s counsel convinced her that the statute can be interpreted narrowly, Justice Ginsburg will likely side with Petitioner.

Justice Alito:  Justice Alito seems the clearest vote for North Carolina.  Justice Alito asked Petitioner a compelling question, focused on the history of the First Amendment.  Back in the old days before the Internet, could a convicted kidnapper be prohibited from visiting nursery schools?  The response, which I found satisfying, was that a nursery school is not a place only of First Amendment activity.  The Justice also remarked that just because Facebook is a channel of communication that people enjoy doesn’t mean there aren’t alternative channels of communication – the fact that social media has been added as a method of communication doesn’t mean others, pre Internet, have been taken away.

Justice Alito also tried to help North Carolina’s counsel limit the reach of the statute.  He didn’t ask as many questions as many of the Justices, but he is the least speech-protective Justice, so I think he may side with the state.

Justice Kagan:  Justice Kagan, quite Internet savvy (she even corrected North Carolina’s counsel about Snapchat), understood social media to be a “crucially important channel of political communication.”   She extolled the Internet as vital to political and religious communities, and culture at large.  “This is the way people structure their community life.”  The Justice did, however, frame the criminal sanction here as a prophylactic rule, enacted because the state cannot monitor everyone’s communications to know when illegal contacts are happening.  Although she noted that the state can impose prophylactic rules that burden speech, she distinguished those cases from this one.

Justice Kagan took North Carolina’s counsel to task for his attempts to limit the reach of the statute to not cover The New York Times, on whose website a user can also create profiles.  In a classic Justice Kagan move, she noted that his construction of the statute would require “an implied colon and an implied semicolon… and then another implied semicolon….and then another implied semicolon.”

Overall, Justice Kagan may have been most receptive to Petitioner, reminding North Carolina’s counsel that he had renounced treating the statute as a restriction on conduct, despite the North Carolina Supreme Court’s designating the law as regulating conduct with incidental speech burdens.

Justice Breyer:  Justice Breyer was a tough questioner for both sides.  He seemed especially concerned with how narrowly the Court should interpret the statute and the ramifications of invalidating the statute on its face.  For both counsels’ arguments, he continued to liken this case to barring sex offenders from playgrounds, despite the fact that a playground is not an inherent locus of First Amendment activity.   However, Justice Breyer did seem to indicate that this statute limits speech “dramatically” and that there “probably” are less restrictive ways of serving North Carolina’s interests.  He also asked a critical question – whether the state can ban white collar criminals from Facebook to prevent swindling users.  Pretty soon, he worried, the state can prevent everyone from accessing everything.  North Carolina’s counsel noted that sex offenders are just different and can be subjected to much worse punishments, like the registry (whether or not this should be considered constitutional, it currently is).

I fear that Justice Breyer will write some sort of compromise opinion that perverts the analytical precision that resolution of this case could bring to First Amendment doctrine.

Chief Justice Roberts:  The Chief was specifically focused on the efficacy of other ways of serving the state’s interests, how technology can facilitate such monitoring, and whether prohibitions like this law can be added to sentences instead of applying to the registry.  I was surprised at how little he delved into the larger questions of First Amendment doctrine.  He may also be looking to write an opinion that is narrow in scope.   The Chief generally decides First Amendment cases in favor of free speech, and I am not convinced he will depart from that here.

Justice Thomas:  Justice Thomas, consistent with his usual practice, did not ask questions.  I am loathe to speculate on how he is thinking about this case in particular, as his views on the First Amendment can be idiosyncratic.  In other free speech cases, he has shown a willingness to protect children.

Despite the fact that Petitioner’s counsel made many First Amendment concessions, he returned at the end of his rebuttal to the idea that Packingham was convicted for core protected speech, which did not implicate the government’s purpose.  I predict that the North Carolina law will be struck down.  Justices Kennedy, Kagan, Sotomayor, and The Chief seem solidly on Petitioner’s side.  Justice Breyer is also quite likely on Petitioner’s side, and that’s enough to overturn this case.  I could also imagine Justice Ginsburg supplying the needed fifth vote, or even a sixth vote.  Ultimately, I do not think the Court will accept the view that sex offenders are just different.