Supreme Court Says You Can't Ban People From The Internet, No Matter What They've Done

from the good-to-see dept

Going all the way back to 2002 (and many times after that), we’ve talked about courts struggling with whether or not it’s okay to ban people from the internet after they’ve committed a crime. The question comes up in many different cases, but most prevalently in cases involving child predators. While courts have struggled with this issue for so long, it’s only now that the Supreme Court has weighed in and said you cannot ban someone from the internet, even if they’re convicted of horrific crimes — in this case, sex crimes against a minor. The case is Packingham v. North Carolina, and the Supreme Court had to determine if it violated the First Amendment’s free speech clause and the Fourteenth Amendment’s due process clause, to make it a felony for convicted sex offenders to visit social media sites like Facebook and Twitter, as was the case under a North Carolina law.

In this case, Lester Packingham is a convicted sex offender for an event that happened back in 2002. In 2010, he went on Facebook to brag about getting a traffic ticket dismissed — using his middle name as his last name. A local police officer saw the post and connected the dots to figure out that the poster “J.R. Gerard” was actually Lester Gerard Packingham and charged him with violating that NC law on using social media as a sex offender. Various state courts went back and forth with the NC Supreme Court eventually saying that the law was “constitutional in all respects.” The Supreme Court of the United States, however, did not agree.

The ruling is interesting on a number of levels. It cites, pretty directly, EFF’s amicus brief, noting just how important and central to our lives sites like Facebook have become.

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 Member 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 Amendment activity on topics ?as diverse as human thought.?

The opinion, written by Justice Kennedy, notes that the internet is a vast and changing place, and notes that the court does need to proceed with caution — but that caution must be in the direction of protecting Constitutional rights:

This case is one of the first this Court has taken to address the relationship between the First Amendmentand the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the FirstAmendment provides scant protection for access to vast networks in that medium.

And then, the opinion dives right in and says that the law is obviously a violation of the First Amendment for not being “narrowly tailored.” Again, while there are a few limited exceptions to the First Amendment, they are very narrowly tailored and the Supreme Court has shown little to no interest in expanding them:

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 governmental interest.? … In other words, the law must not ?burden substantially more speech than is necessary to further the government?s legitimate interests.? …

And this law is not, at all, narrowly tailored. Once again, SCOTUS leans heavily on EFF’s amicus brief to point out how overly broad this NC law is:

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,, and See post, at 6?9; see also Brief for Electronic Frontier Foundation 24?27; Brief for Cato Institute et al. as Amici Curiae 10?12, and n. 6. The Court need not decide the precise scope of the statute. It is enough to assume that the law applies (as the State concedes it does) to social networking sites ?as commonly understood??that is, websites like Facebook, LinkedIn, and Twitter….

From there, it notes that clearly a state could bar more specific and narrowly tailored actions that are not broadly targeting speech:

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…. 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.

But this law obviously goes way beyond that, and the Court is troubled by this, calling it “unprecedented in the scope of First Amendment speech it burdens.”

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…. 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 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. 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 anInternet connection to ?become a town crier with a voice that resonates farther than it could from any soapbox.”…

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 especially 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.

The above part is the key part of this ruling, and I fully expect it to be cited repeatedly in future cases. It’s the Supreme Court declaring, quite clearly, that the ability to use the internet is vital to being a part of society today, and thus there’s a fundamental First Amendment right to be able to do so.

Three Justices — Alito, Roberts and Thomas — concur with the overall opinion, but do take some issue with the expansive nature of Kennedy’s opinion, suggesting it goes too far. In the concurrence, written by Alito, they note:

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…. 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 problems with their peers. I am troubled by the implications of the Court?s unnecessary rhetoric.

I don’t see how they can read the majority opinion to say that. Kennedy’s opinion makes it quite clear that such things can be restricted where it’s clear that these actions are narrowly targeted at situations that “often presages a sexual crime.” Either way, I get the feeling that, despite these concerns, this case will be cited in useful ways to protect free speech in the future…

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Comments on “Supreme Court Says You Can't Ban People From The Internet, No Matter What They've Done”

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David (profile) says:

Internet as a utility.

Americans cannot operate without the internet. It is a vital link to our government, at all levels. Many jobs require it, indeed it provides many jobs. Giving control of such import to corporations that abuse common decency is becoming unacceptable. If they haven’t already crossed over the line many, many times.

The ruling was an interesting read.

Anonymous Coward says:

Re: Re: Lower Courts

Correct, but Congress could strip those courts away for it, but they don’t. If you have the power to stop corruption but do not, are you not also corrupt?

The root problem in America is that people pay the least attention to those that affect them more. People care more about Donald than their own dirty politicians locally or in Congress. During peace time, the Executive branch is the LEAST powerful arm of the Government. Congress is easily the most powerful branch, which is also why they have the most people filling its ranks as far as elected positions go.

There is no personal responsibility and everyone is more than willing to destroy you by association so we are already beyond recovery. I am just waiting around for more people to realize it.

Anonymous Coward says:

Re: Re: Re:2 Lower Courts

Sounds like you do not understand the Constitution.

First check your own facts before you challenge others.

Article 1 Section 8
1: The Congress shall have Power…
9: To constitute Tribunals inferior to the supreme Court;

Article 3 Section 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Did you bother reading anything before opening your ignorant mouth?

Bergman (profile) says:

Re: Re: Re:3 Lower Courts

You seem to be a bit confused as well.

At the moment, the courts have a doctrine — a rule internal to the courts based on no law whatsoever — called Qualified Immunity. Under this doctrine, courts will simply refuse to hear any lawsuit against a police officer unless the plaintiff can present compelling evidence up front, before any discovery, that the defendant acted outside of the line of duty and violated the law.

If Congress were to pass a statute that turned this doctrine into actual law, it would be struck down by the courts as unconstitutional, because it creates a less privileged class of citizen. Yet the courts apply this doctrine as if it were law, despite the fact that the courts cannot create new laws, and Congress had no part in the crafting of the doctrine.

However, if Congress were to pass a law that makes Qualified Immunity illegal, the courts would have no choice but to obey the law, because a statute ALWAYS overrides and supersedes a doctrine unless the statute is itself unconstitutional in what it does.

Doing so is well within the powers of Congress as defined by the constitution, even though it would be a direct modification of the federal court system.

Tanner Andrews (profile) says:

Re: Re: Re:4 Lower Courts

though it would be a direct modification of the federal court system

Nope. It would be a modification of the law, and the courts would in theory interpret and apply it. It would be the same courts, with the same powers, as before.

Legislative bodies change the law regularly, and generally unwisely. The courts may interpret the new law, or even find it unconstitutional, but the courts are the same, with the same powers as before.

Anonymous Coward says:

Mike, that is NOT what this opinion says, nor what it means.
If a person is convicted of a crime which directly involves misuse of the internet, it is entirely possible that the court would uphold a ban on use of the internet while that person is on probation or parole. A terrorist plot to hack into a nuclear plant, for example.

PaulT (profile) says:

Re: Re:

“it is entirely possible that the court would uphold a ban on use of the internet while that person is on probation or parole”

The judgement appears to deal directly with what happens following conviction and completion of the sentence, not during. Do you have anything to show that it does deal with such in a way that makes it differ from other kinds of sentencing (for example, you can lock someone up during their sentence, you can’t do so indefinitely after the sentence is completed without further sentencing, no matter what they’ve done)?

In other words – do you have something to add that’s not covered already, or were you so desperate to attack yet again that you missed reading the article and understanding what it actually says?

“A terrorist plot to hack into a nuclear plant, for example.”

Why are your nuclear plants connected to the public internet? That seems like a bigger problem than allowing someone who thought about attacking your weak security to use Facebook. Especially since that means they don’t have to be under your jurisdiction to commit this particular action, let alone be in a position where you can mandate such a restriction.

Perhaps you’d better concern yourself with getting competent staff designing those things, rather than coming up with wild justifications for punishment after their debt to society is paid.

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