publications full of ideas
Yes, There is the Right to Facebook (Or Tweet) in the Constitution


We had previously written about Packingham v. North Carolina, where the Supreme Court of the United States confronted the question of whether, in an effort to protect minors, States can bar individuals on the sex offender registry from using large sections of the Internet. The restriction at issue was N.C.G.S. § 14-202.5, a North Carolina statute that 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, and even the New York Times, still left ample avenues of communications for the restricted individuals.

Writing for a unanimous United States Supreme Court, Justice Kennedy disagreed. The Court acknowledged the State’s vital interest in protecting children. Nevertheless, it found that the restrictions at issue were 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 vast realms of human thought and knowledge.” This holding highlights that the distinction between cyber and brick-and-mortar realms is increasingly outmoded in contemporary First Amendment analysis.

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.” In Packingham, the statutory restrictions extended beyond particular channels that may have been particularly germane to the statute’s protective purpose, such as teen-oriented discussion boards, to general-interest sites such as WebMd and 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 websites of local TV affiliates, provided a viable alternative to the foreclosed channels. As such, the North Carolina statute was held to be unconstitutional.

Revealingly, Justice Alito, joined by Chief Justice Roberts and Justice Thomas, concurred in the result only. While they also would 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 concurring justices 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 – as 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.

Physical Address: 301 Fayetteville Street, Suite 1900, Raleigh, NC 27601

related information

what's new at the firm

Liza Nye Joins Poyner Spruill LLP


RALEIGH, MARCH 22, 2018 – Poyner Spruill is pleased to announce Liza Nye has joined the firm as an associate in Poyner Spruill’s Banking and Financial Services section.

Poyner Spruill partner honored with excellence award from Federal Bar Association chapter


The Eastern District of North Carolina chapter of the Federal Bar Association (FBA) honored Poyner Spruill partner David Long last week with its second annual Judge David W. Daniel Award for Excellence in the Legal Community.

WEBINAR EVENT: New CMS ROPs for SNFs and what the term "resident representative" means


We're partnering with NCHCFA to bring you a new webinar series open to all NCHCFA members. Register now!

Two Poyner Spruill Attorneys Help Work for Tomorrow through Mentor Program at UNC Law


RALEIGH, NC – Founded in 2016, the McIntyre-Whichard Legal Fellows Program is now in its second year of existence at the University of North Carolina School of Law. The program was founded by two UNC Law School alums and is co-sponsored by the North Carolina Study Center and the UNC Christian Legal Society. The program is named after Poyner Spruill partner and former U.S. Congressman Mike McIntyre and former N.C. Supreme Court Justice Willis Whichard, who are both alums of the university and serve as program mentors.

Poyner Spruill Diversity Committee to host panel discussion with key leaders in the legal field to celebrate Black History Month


The Poyner Spruill Diversity Committee is celebrating Black History Month by hosting an intimate panel discussion with key leaders who have been successful in the legal field.