The Supreme Court of the United States has just agreed to the hear Packingham v. United States. The grant of certiorari reflects the increasing integration of cyberlaw with mainstream constitutional litigation. Packingham, which we have previously analyzed, involved N.C.G.S. § 14-202.5, a North Carolina statute prohibits registered sex offenders from using websites available to minors.

The North Carolina Proceedings

Lester Packingham was convicted of taking indecent liberties with a minor and required to register as a sex offender. Six years after Packingham’s conviction, North Carolina enacted N.C.G.S. § 14-202.5 that barred registered sex offenders from using websites used by minors. The restriction encompasses a variety of sites including Facebook. A Durham police officer observed a Facebook post in which Packingham, ironically, thanked God for a victory in traffic court. Packingham was subsequently convicted of violating N.C.G.S. § 14-202.5.

Packingham raised a First Amendment defense. The Superior Court rejected his argument, noting that resolving tensions between disparate interests was a legislative prerogative. The North Carolina Court of Appeals reversed, finding N.C.G.S. § 14-202.5 unconstitutional both on its face and as applied to Packingam. It relied on decisions from federal courts in Louisiana and Nebraska, as well as the Seventh Circuit, rejecting similar bans on sex offenders

The North Carolina Supreme Court in turn reversed the Court of Appeals. Packingham’s First Amendment defense was rejected on two grounds. First, the North Carolina Supreme Court viewed the statute as governing conduct, not speech. Second, it found that Packingham had ample alternative means of communication available to him: those sites that were limited to adults such as the Paula Deen Network, WRAL.com, Glassdoor.com, and Shutterfly. Moreover, while the statute was stringent, its absolute bar aim to prevent sexual offenders from gathering information on potential victims, and not merely from communicating with them. These were valid governmental objectives.

The dissent disagreed. It viewed the statute as prohibiting far too great a range of permissible activity – a “criminal prohibition of alarming breadth”. It noted that the statute barred sex offenders not only from popular “social networking” sites such as Facebook, Google+, LinkedIn, Instagram, Reddit, and MySpace, but also the websites of the Raleigh News & Observer as well as Internet giants like Amazon or Google.

The Supreme Court Grants Certiorari

The North Carolina Supreme Court decision would have been the end of the road for the vast majority of cases. Packingham’s last recourse was seeking certiorari to the Supreme Court of the United States. The vast majority of certiorari petitions are denied. Recent grant rates have hovered just above 1%.

The grant itself does not foreshadow the ultimate outcome of the case. Even though appellate lawyers quip that the court does not grant certiorari to affirm, Packingham may simply be the vehicle on which the Supreme Court has selected to issue guidelines in this area. That selection is significant. The Supreme Court carefully limits grants of certiorari to issues that court considers both momentous and sufficiently well developed. The docketing of Packingham indicates that the court considers that it is time to evaluate what the constitution requires in the Internet age.

Moreover, the court limits certiorari to a specific issue. In Packingham, the general issue is the First Amendment and social media. More technically, the court has granted certiorari on “Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!””

The Court Considers the Internet, Social Network and Speech

Packingham signals that thecCourt is prepared to consider the free speech implications of web restrictions. The North Carolina statute, and similar ones in other states, have typically barred registered sex offenders from services that are used by the majority of Americans such as Facebook (71% of U.S. residents) or LinkedIn (77% of employers). Politicians, including President Obama and Senators Ron Paul and Ted Cruz have used social media effectively to promote their narratives and their visions. Nor is this a purely American phenomena. The Arab Spring was triggered after Tunisian merchant Mohamed Bouazizi set fire to himself to protest police harassment, and video of his horrific death went viral on Facebook.

The Supreme Court proceedings can be considered on several levels. The issue of when the regulation of free speech is appropriate has been litigated for at least a century. The background facts have involved everything from New York City’s ban on unregistered street vendors to California school policies on school clothing to the exclusion of a “peace flotilla” from the proximity of a naval vessel parade during Fleet Week.

However, those issues appear to be different than those that arise when sex offenders are barred from using social networking sites. Cyberspace is different, as we have been reminded recently: it is a means of communication beyond any other, because it integrates employment, social, political and even religious spheres like no other means. Similar social network bans in IndianaLouisiana and Nebraska have already been challenged. The Court has apparently decided that the moment for weighing in on the constitutional implications of such cyber-restrictions has arrived.

Conclusion

The pivotal point then, will not necessarily be the Supreme Court’s ultimate determination: the protection of children is a compelling interest, and the primeval fear of online predators lurking in dark corners has permeated popular culture. The key tell will be the process that the Supreme Court uses to arrive at its determination. If it analyzes Packingham as a routine time-and-manner restriction, then cyberspace will take its place as simply one more avenue of speech: a direct descendant of the old handbill controversies of a century ago.

However, if the Supreme Court – a famously incrementalist institution that still eschews the use of email – frames its decision in a manner that marks access to the Internet in general or social networking in particular as something of a breed apart – lawyers use the term sui generis to impress lay people – then both lawyers and laypeople alike can expect Packingham to herald the dawn of a whole new era of “cyber-constitutional” jurisprudence.

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 sgul@poynerspruill.com. Mike may be reached at 919.783.2851 or mslipsky@poynerspruill.com.

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