On June 19, 2017, the United States Supreme Court decided Packingham v. North Carolina, No. 15-1194, holding that a North Carolina statute that bars registered sex offenders from accessing social networking websites that allow minors to post or become members violates the First Amendment.
In 2008, North Carolina adopted a law making 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 personal webpages.” The statute defines social networking website broadly enough to encompass sites like Facebook.com, LinkedIn, Twitter, and perhaps also Amazon.com, Washingtonpost.com, and WebMD.com, among many other sites.
Packingham, a registered sex offender, was convicted of violating the statute after posting on Facebook regarding his happiness over a dismissed traffic ticket. The state did not allege that he contacted or attempted to contact a minor on the internet. The North Carolina court of appeals overturned Packingham’s conviction, holding that the statute violated the First Amendment. The North Carolina Supreme Court reversed, concluding the law was constitutional.
The U.S. Supreme Court reversed. The Court noted that, even if the statute is content neutral, it cannot survive intermediate scrutiny because it is not narrowly tailored to serve a significant governmental interest. The law was designed to serve a significant governmental interest of preventing child sexual abuse. But the law is not narrowly tailored because it not only bars registered sex offenders from not only contacting minors using the social networking websites, it prevents them from using the sites for purposes like job searching and interacting with their elected representatives. The Court noted that a more narrowly tailored prohibition could satisfy First Amendment scrutiny.
Justice Kennedy delivered the opinion of the Court, in which Justices Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Alito filed an opinion concurring in the judgment, which Chief Justice Roberts and Justice Thomas joined. Justice Gorsuch took no part in the consideration or decision of the case.