PACKINGHAM v. NORTH CAROLINA
No. 15-1194
SUPREME COURT OF THE UNITED STATES
June 19, 2017
582 U. S. ____ (2017)
CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA
Argued February 27, 2017
(Slip Opinion)
OCTOBER TERM, 2016
Syllabus
NOTE: Whеre it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PACKINGHAM v. NORTH CAROLINA
CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA
No. 15-1194. Argued February 27, 2017-Decided June 19, 2017
Held: The North Carolina statute impermissibly restricts lawful speech in violation of the First Amendment. Pp. 4-10.
(b) This background informs the analysis of the statute at issue. Even assuming that the statute is content neutral and thus subject to intermediate scrutiny, the provision is not ““narrowly tailored to serve a significant governmental interеst.““” McCullen v. Coakley, 573 U. S. ____. Like other inventions heralded as advances in human progress, the Internet and social media will be exploited by the criminal mind. It is also clear that “sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people,” Ashcroft v. Free Speech Coalition, 535 U. S. 234, 244, and that a legislature “may pass valid laws to protect children” and other sexual assault victims, id., at 245. However, the assertion of a valid governmental interest “cannot, in every context, be insulated from all constitutional protections.” Stanley v. Georgia, 394 U. S. 557, 563.
Two assumptions are made in resolving this case. First, while the Court need not decide the statute‘s precise scope, it is enough to assume that the law applies to commonplace social networking sites like Facebook, LinkedIn, and Twitter. Second, the Court assumes that the First Amendment permits a State 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.
Even with these assumptions, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another on any subject that might come to mind. With one broad stroke, North Carolina 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. Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights. Even convicted criminals and in some instances especially convicted criminals-might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives. Pp. 6-8.
(c) The State has not met its burden to show that this sweeping law is necessary or legitimate to serve its purpose of keeping convicted sex offenders away from vulnerable victims. No case or holding of
368 N. C. 380, 777 S. E. 2d 738, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in the judgment, in which ROBERTS, C. J., and THOMAS, J., joined. GORSUCH, J., took no part in the consideration or decision of the case.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 15-1194
LESTER GERARD PACKINGHAM, PETITIONER v. NORTH CAROLINA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA
[June 19, 2017]
JUSTICE KENNEDY delivered the opinion of the Court.
In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter. The question presented is whether that law is permissible under the First Amendment‘s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment.
I
A
North Carolina law mаkes it a felony for a registered sex offender “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 statute includes two express exemptions. The statutory bar does not extend to websites that “[p]rovid[e] only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform.”
According to sources cited to the Court,
B
In 2002, petitioner Lester Gerard Packingham-then a 21-year-old college student-had sex with a 13-year-old girl. He pleaded guilty to taking indecent liberties with a child. Because this crime qualifies as “an offense against a minor,” petitioner was required to register as a sex offender-a status that can endure for 30 years or more. See
In 2010, a state court dismissed a traffic ticket against petitioner. In response, he logged on to Facebook.com and posted the following statement on his personal profile:
“Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent. . . . .Praise be to GOD, WOW! Thanks JESUS!” App. 136.
At the time, a member of the Durham Police Department was investigating registered sex offenders who were thought to be violating
Petitioner was indicted by a grand jury for violating
Petitioner appealed to the Court of Appeals of North Carolina. That court struck down
The Court granted certiorari, 580 U. S. ____ (2016), and now reverses.
II
A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. See Ward v. Rock Against Racism, 491 U. S. 781, 796 (1989). Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.
While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace-the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. Seven in ten American adults use at least one Internet social networking service. Brief for Electronic Frontier Foundation et al. as Amici Curiae 5-6. One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. According to sources cited to the Court in this case, Facebook has 1.79 billion active users. Id., at 6. This is about three times the population of North America.
Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.” Reno, supra, at 870. On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos. On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship. And 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 Membеr of Congress have set up accounts for this purpose. See Brief for Electronic Frontier Foundation 15-16. In short, social media users employ these websites to engage in a wide array of protected First
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. Cf. D. Hawke, Benjamin Rush: Revolutionary Gadfly 341 (1971) (quoting Rush as observing: “The American war is over; but this is far from being the case with the American revolution. On the contrary, nothing but the first act of the great drama is closed“). So too here. 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 may 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.
III
This background informs the analysis of the North Carolina statute at issue. Even making the assumption that the statute is content neutral and thus subject to intermediate scrutiny, the provision cannot stand. In order to survive intermediate scrutiny, a law must be “narrowly tailored to serve a significant governmentаl interest.” McCullen v. Coakley, 573 U. S. ____, ____ (2014) (slip op., at 18) (internal quotation marks omitted). In other words, the law must not “burden substantially more speech than is necessary to further the government‘s legitimate interests.” Id., at ____ (slip op., at 19) (internal quotation marks omitted).
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, see M. Crichton, The Great Train Robbery, p. xv (1975), and the telephone another, see
There is also no doubt that, as this Court has recog-nized, “[t]he sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.” Ashcroft v. Free Speech Coalition, 535 U. S. 234, 244 (2002). And it is clear that a legislature “may pass valid laws to protect children” and other victims of sexual assault “from abuse.” See id., at 245; accord, New York v. Ferber, 458 U. S. 747, 757 (1982). The government, of course, need not simply stand by and allow these evils to occur. But the assertion of a valid governmental interest “cannot, in every context, be insulated from all constitutional protections.” Stanley v. Georgia, 394 U. S. 557, 563 (1969).
It is necessary to make two assumptions to resolve this case. First, given the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com. See post, at 6-9; see also Brief for Electronic Frontier Foundation
Second, this opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue. Specific criminal acts are not protected speech even if speech is the means for their commission. See Brandenburg v. Ohio, 395 U. S. 444, 447-449 (1969) (per curiam). Though the issue is not before the Court, it can be assumed that the First Amendment permits a State 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. Cf. Brief for Respond-ent 42-43. Specific laws of that type must be the State‘s first resort to ward off the serious harm that sexual crimes inflict. (Of importance, the troubling fact that the 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 is also not an issue before the Court.)
Even with these assumptions about the scope of the law and the State‘s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. Supra, at 5. 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 сurrent 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. They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.” Reno, 521 U. S., at 870.
In sum, 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 especiаlly 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.
IV
The primary response from the State is that the law must be this broad to serve its preventative purpose of keeping convicted sex offenders away from vulnerable victims. The State has not, however, met its burden to show that this sweeping law is necessary or legitimate to serve that purpose. See McCullen, 573 U. S., at ____ (slip op., at 28).
It is instructive that no case or holding of this Court has approved of a statute as broad in its reach. The closest analogy that the State has cited is Burson v. Freeman, 504 U. S. 191 (1992). There, the Court upheld a prohibition on campaigning within
The better analogy to this case is Board of Airport Comm‘rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 (1987), where the Court struck down an ordinance prohibiting any “First Amendment activities” at Los Angeles International Airport because the ordinance covered all manner of protected, nondisruptive behavior including “talking and reading, or the wearing of campaign buttons or symbolic clothing,” id., at 571, 575. If a law prohibiting “all protected expression” at a single airport is not constitutional, id., at 574 (emphasis deleted), it follows with even greater force that the State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture.
*
It is well established that, as a general rule, the Government “may not suppress lawful speech as the means to suppress unlawful speech.” Ashcroft v. Free Speech Coalition, 535 U. S., at 255. That is what North Carolina has done here. Its law must be held invalid.
The judgment of the North Carolina Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE GORSUCH took no part in the consideration or decision of this case.
ALITO, J., concurring in judgment
NOTICE: This opinion is subject to formal revision bеfore publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 15-1194
LESTER GERARD PACKINGHAM, PETITIONER v. NORTH CAROLINA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA
[June 19, 2017]
JUSTICE ALITO, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, concurring in the judgment.
The North Carolina statute at issue in this case was enacted to serve an interest of “surpassing importance.” New York v. Ferber, 458 U. S. 747, 757 (1982)-but it has a staggering reach. It makes it a felony for a registered sex offender simply to visit a vast array of websites, including many that appear to provide no realistic opportunity for communications that could facilitate the abuse of children. Because of the law‘s extraordinary breadth, I agree with the Court that it violates the Free Speech Clause of the First Amendment.
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. Ante, at 4-5. 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 prob-lems with their peers. I am troubled by the implications of the Court‘s unnecessary rhetoric.
I
A
The North Carolina law at issue makes it a felony for a registered sex offender “to
Packingham and the State debate the analytical framework that governs this case. The State argues that the law in question is content neutral and merely regulates a “place” (i.e., the internet) where convicted sex offenders may wish to engage in speech. See Brief for Respondent 20-25. Therefore, according to the State, the standard applicable to “time, place, or manner” restrictions should apply. See Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989). Packingham responds that the challenged statute is “unlike any law this Court has considered as a time, place, or manner restriction,” Brief for Petitioner 37, and he advocates а more demanding standard of review, id., at 37-39.
Like the Court, I find it unnecessary to resolve this dispute because the law in question cannot satisfy the standard applicable to a content-neutral regulation of the place where speech may occur.
B
A content-neutral “time, place, or manner” restriction must serve a “legitimate” government interest, Ward, supra, at 798, and the North Carolina law easily satisfies this requirement. As we have frequently noted, “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Ferber, supra, at 757. “Sex offenders are a serious threat,” and “the victims of sexual assault are most often juveniles.” McKune v. Lile, 536 U. S. 24, 32 (2002) (plurality opinion); see Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1, 4 (2003). “[T]he interest [of] safeguarding the physical and psychological well-being of a minor . . . is a cоmpelling one,” Globe Newspaper Co. v. Superior Court, County of Norfolk, 457 U. S. 596, 607 (1982), and “we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights,” Ferber, supra, at 757.
Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” McKune, supra, at 33 (plurality opinion); see United States v. Kebodeaux, 570 U. S. 387, ____-____ (2013) (slip op., at 8-9).
The State‘s interest in protecting children from recidivist sex offenders plainly applies to internet use. 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 aсcess to their personal information-by, for example, communicating with strangers and allowing sites to disclose their location.1 Second, the internet provides previously unavailable ways
Because protecting children from abuse is a compelling state interest and sex offenders can (and do) use the internet to engage in such abuse, it is legitimate and entirely
reasonable for States to try to stop abuse from occurring before it happens.
C
1
It is not enough, however, that the law before us is designed to serve a compelling state interest; it also must not “burden substantially more speech than is necessary to further the government‘s legitimate interests.” Ward, 491 U. S., at 798-799; see also McCullen v. Coakley, 573 U. S. ____, ____-____ (2014) (slip op., at 18-19). The North Carolina law fails this requirement.
A straightforward reading of the text of
Second, the website must “[f]acilitat[e] the social introduction between two or
Third, a website must “[a]llo[w] 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 infor-mation about the user, and links to othеr 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.”
Fourth, in order to fit within the statute, a website must “[p]rovid[e] users or visitors . . . mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.”
2
The fatal problem for
Take, for example, the popular retail website Amazon.com, which allows minors to use its services5 and
meets all four requirements of
Many news websites are also covered by this definition. For example, the Washington Post‘s website gives minоrs access9 and satisfies the four elements that define a com-
mercial social networking website. The website (1) derives revenue from ads and (2) facilitates social introductions for the purpose of information exchanges. Users of the site can comment on articles, reply to other users’ comments, and recommend another user‘s comment.10 Users can also (3) create personal profiles that include a name or nickname and a photograph. The photograph and name will then appear next to every comment the user leaves on an article. Finally (4), the back-and-forth comment section is a mechanism for users to communicate among themselves. The site thus falls within
Or consider WebMD-a website that contains health-related resources, frоm tools that help users find a doctor to information on preventative care and the symptoms associated with particular medical problems. WebMD, too, allows children on the site.11 And it exhibits the four hallmarks of a “commercial social networking” website. It obtains revenue from advertisements.12 It facilitates information exchanges-via message boards that allow users to engage in public discussion of an assortment of health issues.13 It allows users to create basic profile
pages: Users can upload a picture and some basic information about themselves, and other users can see their aggregated comments and “likes.”14 WebMD also provides message boards, which are specifically mentioned in the statute as a “mechanis[m] to communicate with other users.”
As these examples illustrate, the North Carolina law has a very broad reach and
Placing this set of websites categorically off limits from registered sex offenders prohibits them from receiving or engaging in speech that the First Amendment protects and does not appreciably advance the State‘s goal of protecting children from recidivist sex offenders. I am therefore compelled to conclude that, while the law before us addresses a critical problem, it sweeps far too broadly to satisfy the demands of the Free Speech Clause.15
II
While I thus agree with the Court that the particular law at issue in this case violates the First Amendment, I am troubled by the Court‘s loose 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.” Ante, at 4-5. 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” sites16 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.
I will mention a few that are relevant to internet use by sex offenders. 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 fre-
quented by children, this conduct may be observed by parents, teachers, or others. Third, the internet offers an unprecedented degree of anonymity and easily permits
The Court is correct that we should be cаutious in applying our free speech precedents to the internet. Ante, at 6. 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,” ibid., we should proceed circumspectly, taking one step at a time. It is regrettable that the Court has not heeded its own admonition of caution.