Packingham v. North Carolina: A New (Digital) Age for SCOTUS


“God is Good!” Lester Packingham posted on Facebook, celebrating the dismissal of a traffic ticket. As soon as a Durham police officer saw that post, he arrested Packingham. The crime? Packingham was a registered sex offender and, in North Carolina, registered sex offenders may not access any internet website that could facilitate communication between the sex offender and a minor (Section 202.5).

Packingham moved to dismiss the charge against him on First Amendment grounds. The case made its way up to the North Carolina Supreme Court which held that Section 202.5 passed constitutional muster. The United States Supreme Court of the United States granted writ of certiorari and heard oral arguments on February 27, 2017.

During oral argument, the following theses were posted:

THE LAW IS CONSTITUTIONAL

  1. Sex offenders subject to the law have other informational resources, like podcasts, blogs, and the New York Times.
  2. There was a 1992 case in which SCOTUS upheld a Tennessee law that imposed a ban on soliciting votes or distributing campaign materials within 100 feet of a polling place; the court ruled that the ban served the state’s interest in protecting voting rights of its citizens.
  3. State laws that take away the right of felons to vote or own guns have been upheld as constitutional.

THE LAW IS UNCONSTITUTIONAL

  1. Social media sites are used universally for communications, information, political speech.
  2. Would-be criminals can use the internet for almost any criminal endeavor, including finding a bank to rob.
  3. The state should not be able to silence individuals unless there is a “clear and present danger.”

Most notably, many justices showed their respect for social media:

  • Justice Ginsburg called social media “a very large part of the marketplace of ideas,” in which not only do people speak but also receive information.
  • Calling it “a crucially important channel of political communication,” Justice Kagan noted that in addition to Trump, all 50 governors, all 100 U.S. Senators, and all members of the House of Representatives have Twitter accounts.
  • Justice Kennedy said that social media are “greater than the communication you could have ever had, even in the paradigm of a public square.”

Perhaps this unequivocal acceptance of social media and the value it plays in the wide marketplace of ideas on SCOTUS’ part is indicative of the side of which the Court will come down this summer. One thing is certain: the opinion will be historic in that it will mark the first time that SCOTUS examines social media in full and opines as to how much First Amendment protection it deserves.

About the Author – Dara Lovitz

Dara Lovitz is the author of Muzzling A Movement: The Effects of Anti-Terrorism Law, Money, and Politics on Animal Activism (2010) and Catching Falling Cradles: A Gentle Approach to Classic Rhymes (2014), Adjunct Professor of Animal Law at Temple University Beasley School of Law, and CLE Project Coordinator for American Law Institute CLE. She is a founding member of the non-profit organization Peace Advocacy Network.

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