Yes, There is the Right to Facebook (Or Tweet) in the Constitution
By Saad Gul and Michael E. Slipsky
We had previously written about Packingham v. North Carolina, where the Supreme Court of the United States confronted the question of whether states can bar individuals on the sex offender registry from large sections of the Internet to protect minors. The restriction at issue was N.C.G.S. § 14-202.5, a North Carolina statute prohibits registered sex offenders from using websites available to minors.
The North Carolina Supreme Court had previously held that the statutory restrictions were permissible, since the loss of channels such as Facebook, LinkedIn, or even the New York Times, still left ample avenues of communications such as the Paula Deen website.
Writing for a unanimous Supreme Court, Justice Kennedy disagreed. The Court acknowledged the state’s vital interest in protecting children. Nevertheless, it found that the restrictions at issue overbroad. “North Carolina with one broad stroke bars access to what for many are the principal sources of knowing current events checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the cast realms of human thought and knowledge.” This analysis highlights that the distinction between cyber and bricks-and-mortar realms is increasingly outmoded.
Social media is a powerful tool: as Justice Kennedy explains, it allows anyone with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.” New technologies soon become the instruments of new crime, as with the advent of the railroad and the telephone.
In Packingham, the statutory restrictions extended beyond particular channels, such as teen discussion boards, to general sites such as WebMd and WashingtonPost.com. The Court found that such sweeping restrictions foreclosed too many channels of communication. It rejected the state’s argument that other venues, such as the website of local TV affiliates, provided a viable alternative to the foreclosed channels. As such, the North Carolina statute was unconstitutional.
Revealingly, Justice Alito, joined by Chief Justice Roberts and Justice Thomas, concurred in the result only. While they would also have found the North Carolina statute overbroad, the concurrence found Justice Kennedy’s language too broad. Rather than shut the door to all future restrictions, the concurrence preferred a more cautious and incremental approach.
Packingham states that it is the first Supreme Court decision to directly address the First Amendment implications of Internet speech. While some may quibble with that characterization – Reno has long been cited in this area – it is clear that whether or not Packingham is the first word on the issue, it will be far from the last.
Saad Gul and Mike Slipsky, editors of NC Privacy Law Blog, are partners with Poyner Spruill LLP. They advise clients on a wide range of privacy, data security, and cyber liability issues, including risk management plans, regulatory compliance, cloud computing implications, and breach obligations. Saad (@NC_Cyberlaw) may be reached at 919.783.1170 or firstname.lastname@example.org. Mike may be reached at 919.783.2851 or email@example.com.