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Packingham v. North Carolina

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Supreme Court of the United States
Packingham v. North Carolina
Reference: 15-1194
Issue: First Amendment
Term: 2016
Important Dates
Argued: February 27, 2017
Decided: June 19, 2017
Outcome
North Carolina Supreme Court reversed and remanded
Vote
8-0 to reverse and remand
Majority
Anthony Kennedy • Ruth Bader Ginsburg • Stephen Breyer • Sonia Sotomayor • Elena Kagan
Concurring
Chief Justice John G. Roberts • Clarence Thomas • Samuel Alito


Packingham v. North Carolina is a case argued during the October 2016 term of the U.S. Supreme Court. Argument in the case was held on February 27, 2017. The case came on a writ of certiorari to the North Carolina Supreme Court. On June 19, 2017, in an opinion by Justice Anthony Kennedy, the court reversed and remanded the judgment of the North Carolina Supreme Court. Justice Samuel Alito authored an opinion concurring in the judgment which was joined by Chief Justice John G. Roberts and Justice Clarence Thomas.

In this case, the court held that a North Carolina statute prohibiting registered sex offenders from accessing commercial social networking websites which permit minors to either become members or to create and maintain personal webpages violated the First Amendment.

HIGHLIGHTS
  • The case: A North Carolina law prohibits registered sex offenders from accessing commercial social networking websites which permit minors to either become members or to create and maintain personal webpages.
  • The issue: Is the North Carolina law an unconstitutional restriction of free speech in violation of the First Amendment?
  • The outcome: On June 19, 2017, the court reversed and remanded the judgment of the North Carolina Supreme Court, holding that the statute violated the First Amendment.


    • In brief: Lester Packingham, the petitioner, was found to have a Facebook account in violation of a North Carolina statute prohibiting sex offenders from accessing commercial social networking websites. Packingham was tried and convicted for violating the statute, but successfully appealed his conviction to the North Carolina Court of Appeals, which held the statute violated Packingham's First Amendment rights. The North Carolina Supreme Court reversed that judgment, finding that the law was consistent with the First Amendment's standards for a statute which implicated both speech and nonspeech elements. Argument in the case was held on February 27, 2017.

    You can review the North Carolina Supreme Court's opinion here.[1]

    Click on the tabs below to learn more about this Supreme Court case.

    Case

    Background

    In 2008, North Carolina enacted §14-202.5 of its general statutes, which bans the use of commercial social networking websites by convicted sex offenders. Under the law, a commercial social networking website is a website that includes the following elements:[2]

    “

    (1) Is operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site.
    (2) Facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.
    (3) Allows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Web site.
    (4) Provides users or visitors to the commercial social networking Web site mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.

    A commercial social networking Web site does not include an Internet Web site that either:
    (1) Provides only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform; or
    (2) Has as its primary purpose the facilitation of commercial transactions involving goods or services between its members or visitors. [3]

    		”

    Based on this law, prosecutors in Durham County, North Carolina brought charges against Lester Packingham. Packingham fell within the scope of the law based on a 2002 conviction in Cabarrus County, North Carolina, for a sex offense as defined by §14-202.5. On September 20, 2010, Packingham was indicted by a grand jury for violating §14-202.5. Packingham moved to dismiss the charge, arguing that §14-202.5 was both unconstitutional on its face and as applied to him. On April 19, 2011, the trial court denied Packingham's motion. The trial court found that the law was constitutional as applied, but did not reach the merits of Packingham's facial challenge. A facial challenge to a law suggests that no constitutional application of the law exists, which would prohibit enforcement in any context. An as applied challenge is raised when a defendant asserts that an otherwise constitutional law cannot be applied to the defendant. On June 22, 2011, the North Carolina Court of Appeals denied Packingham's petition for certiorari.[1]

    After a trial in which Packingham was convicted for maintaining a Facebook page in violation of the statute, Packingham was sentenced to six to eight months incarceration, which was suspended for 12 months, and Packingham was placed on probation. Packingham appealed his conviction to the North Carolina Court of Appeals arguing that §14-202.5 was unconstitutional. The Court of Appeals acknowledged North Carolina's legitimate interest in protecting children from sex offenders, however, the court held that the statute was not narrowly tailored, was vague, and failed to target the evil the statute was intended to fix because the statute arbitrarily burdened all registered sex offenders through prevention of a wide range of communication and expression that was unrelated to the state's goals. In so ruling, the Court of Appeals held that the statute violated the First Amendment, was unconstitutional both on its face and as applied, and vacated Packingham's conviction.[1]

    On appeal to the North Carolina Supreme Court, the state argued that prohibiting access by convicted sex offenders to some social networking websites did not violate the First Amendment because the statute regulated conduct, not speech. The North Carolina Supreme Court agreed, finding that the law placed only an incidental burden on speech, Accordingly, the law was subject to a lesser standard of review, a standard known as intermediate scrutiny. In the court's opinion, the majority asserted that "articulations of intermediate scrutiny vary depending on context, but tend to require an important or substantial government interest, a direct relationship between the regulation and the interest, and regulation no more restrictive than necessary to achieve that interest."[1]

    The court proceeded to evaluate the statute under the standard used by the U.S. Supreme Court when speech and nonspeech elements are combined in the same course of conduct, a standard first elucidated by the court's holding in United States v. O'Brien. In O'Brien, the Supreme Court held that a regulation implicating both speech and nonspeech elements was justified "if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidential restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest."[4]

    Based on the North Carolina Supreme Court's assessment of the statute under the O'Brien test, the court held that Packingham failed to meet the requisite standards to mount either a successful facial or as applied challenge and reversed the Court of Appeals' ruling.[1]

    Petitioner's challenge

    Lester Packingham, the petitioner, argued that the North Carolina Supreme Court erred in finding that §14-202.5 was constitutional under the First Amendment. Packingham alleged instead that the law is unconstitutional both on its face and as applied to him.

    Certiorari granted

    On March 21, 2016, Lester Packingham, the petitioner, initiated proceedings in the Supreme Court of the United States in filing a petition for a writ of certiorari to the North Carolina Supreme Court. The U.S. Supreme Court granted Packingham's certiorari request on October 28, 2016. Argument in the case was held on February 27, 2017.

    Arguments


    Question presented

    Question presented:

    "The North Carolina Supreme Court sustained petitioner's conviction under a criminal law, N.C. Gen. Stat. § 14-202.5, that makes it a felony for any person on the State's registry of former sex offenders to "access" a wide array of websites-including Facebook, YouTube, and nytimes.com-that enable communication, expression, and the exchange of information among their users, if the site is "know[n]" to allow minors to have accounts. The law-which applies to thousands of people who, like petitioner, have completed all criminal justice supervision-does not require the State to prove that the accused had contact with (or gathered information about) a minor, or intended to do so, or accessed a website for any illicit or improper purpose.
    The question presented is:
    Whether, under this Court's First Amendment precedents, such a law is permissible, both on its face and as applied to petitioner - who was convicted based on a Facebook "post" in which he celebrated dismissal of a traffic ticket, declaring 'God is Good!'"[5]


    Audio

    • Audio of oral argument:[6]



    Transcript

    • Transcript of oral argument:[7]

    Outcome

    Decision

    On June 19, 2017, in an opinion by Justice Anthony Kennedy, the court reversed and remanded the judgment of the North Carolina Supreme Court. Justice Samuel Alito authored an opinion concurring in the judgment which was joined by Chief Justice John G. Roberts and Justice Clarence Thomas.

    In this case, the court held that a North Carolina statute prohibiting registered sex offenders from accessing commercial social networking websites which permit minors to either become members or to create and maintain personal webpages violated the First Amendment.[8]

    Opinion

    After a review of the factual and procedural record of the case, Justice Kennedy outlined his reasons for the importance of the case under review. He wrote,[8]

    “

    The nature of a revolution in thought can be that, in its early stages, even its participants may be unaware of it. And when awareness comes, they still may be unable to know or foresee where its changes lead. ... 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. This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.[3]

    		”

    Justice Kennedy went on to strike the law, noting that the prohibition put forward by the North Carolina statute was "unprecedented in the scope of First Amendment speech it burdens." He wrote, "to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. 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. ... It is well established that, as a general rule, the Government 'may not suppress lawful speech as the means to suppress unlawful speech.' ... That is what North Carolina has done here. Its law must be held invalid."[8]

    As a result of the court's opinion, the judgment of the North Carolina Supreme Court was reversed and remanded.

    Concurring opinions

    Justice Samuel Alito authored an opinion concurring in the judgment which was joined by Chief Justice John G. Roberts and Justice Clarence Thomas. In his opinion, Justice Alito agreed with Justice Kennedy that that North Carolina statute was in violation of the First Amendment. However, Justice Alito noted that he was troubled by some of the court's rationale in addressing the statute. He wrote,[8]

    “

    I cannot join the opinion of the Court, however, because of its undisciplined dicta. ... The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks. ... And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers. I am troubled by the implications of the Court’s unnecessary rhetoric. ...

    After noting that 'a street or a park is a quintessential forum for the exercise of First Amendment rights,' the Court states that 'cyberspace' and 'social media in particular' are now 'the most important places (in a spatial sense) for the exchange of views.' ... The Court declines to explain what this means with respect to free speech law, and the Court holds no more than that the North Carolina law fails the test for content-neutral 'time, place, and manner' restrictions. But 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. May a State preclude an adult previously convicted of molesting children from visiting a dating site for teenagers? Or a site where minors communicate with each other about personal problems? The Court should be more attentive to the implications of its rhetoric for, contrary to the Court’s suggestion, there are important differences between cyberspace and the physical world. ... The Court is correct that we should be cautious in applying our free speech precedents to the internet. ... Cyberspace is different from the physical world, and if it is true, as the Court believes, that 'we cannot appreciate yet' the 'full dimensions and vast potential' of 'the Cyber Age,' .... we should proceed circumspectly, taking one step at a time. It is regrettable that the Court has not heeded its own admonition of caution.[3]

    		”

    Dissenting opinions

    There were no dissenting opinions filed in this case.

    The opinion



    Filings

    The court granted Packingham's certiorari request on October 28, 2016.

    Merits filings

    Parties' briefs

    • Lester Packingham, the petitioner, filed a merits brief on December 15, 2016.

    Amicus curiae briefs

    The following groups filed amicus curiae briefs in support of the petitioner, Lester Packingham.

    • Brief of the Association for the Treatment of Sexual Abusers (ATSA) et al.
    • Brief of the Electronic Frontier Foundation et al.
    • Brief of the Electronic Privacy Information Center et al.
    • Brief of the National Association of Criminal Defense Lawyers et al.
    • Brief of the Reporters Committee for the Freedom of the Press and the Thomas Jefferson Center for the Protection of Free Expression.


    The following groups filed amicus curiae briefs in support of the respondent, North Carolina.

    • Brief of the Council of State Governments et al.
    • Brief of Stop Child Predators and Shared Hope International

    Certiorari filings

    Parties' filings

    • Lester Packingham, the petitioner, filed a petition for certiorari on March 21, 2016.

    Amicus curiae filings

    The following group of individuals filed an amicus curiae brief in support of granting certiorari.

    • Brief of Professor Ashutosh Bhagwat et al.


    See also

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 Supreme Court of North Carolina, State of North Carolina v. Lester Gerard Packingham, November 6, 2015
    2. ↑ General Assembly of North Carolina, "§ 14-202.5. Ban use of commercial social networking Web sites by sex offenders," accessed February 22, 2017
    3. ↑ 3.0 3.1 3.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    4. ↑ Supreme Court of the United States, United States v. O'Brien, May 27, 1968
    5. ↑ Supreme Court of the United States, Packingham v. North Carolina, October 28, 2016
    6. ↑ Supreme Court of the United States, Packingham v. North Carolina, argued February 27, 2017
    7. ↑ Supreme Court of the United States, Packingham v. North Carolina, argued February 27, 2017
    8. ↑ 8.0 8.1 8.2 8.3 Supreme Court of the United States, Packingham v. North Carolina, June 19, 2017
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