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 Amazon.com, Washingtonpost.com, and Webmd.com. 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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  • icon
    David (profile), 20 Jun 2017 @ 12:05pm

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jun 2017 @ 12:09pm

      Re: Internet as a utility.

      "Giving control of such import to corporations that abuse common decency is becoming unacceptable."

      Such a ridiculously misleading statement.
      Government gave those businesses the tools with which to abuse common decency.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jun 2017 @ 1:47pm

      Re: Internet as a utility.

      How, then, can the FCC not treat internet service as a common carrier and regulate it accordingly?

      reply to this | link to this | view in chronology ]

    • identicon
      FLoyd W, 21 Jun 2017 @ 8:58am

      Re: Internet as a utility.

      That's a lie tens of millions of Americans do not have access to the internet and they are not dead.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Jun 2017 @ 9:03am

        Re: Re: Internet as a utility.

        Yeah - those rural folk can drive to their local library and use the library computer/internet connection.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous, 21 Jun 2017 @ 3:28pm

        Re: Re: Internet as a utility.

        And individuals in those specific areas may not need it, but try finding a job without internet access in an urban area. We don't even take paper applications anymore..

        reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 22 Jun 2017 @ 12:31am

        Re: Re: Internet as a utility.

        Dead? No. Unable to participate on an equal level in a market that often requires job and other applications to be submitted online, provides online-only training and education opportunities, offers saving on products bought online, etc? Absolutely.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Jun 2017 @ 1:58am

        Re: Re: Internet as a utility.

        No one said they were. The lie seems to be yours.

        reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 20 Jun 2017 @ 12:12pm

    Now Trump's handlers will never be able to take away his Twitter account.

    reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 20 Jun 2017 @ 12:42pm

    Lower Courts

    Why do the lower courts hate freedom?

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 20 Jun 2017 @ 12:51pm

      Re: Lower Courts

      There's a much stronger connection between their judges and voters who want their personal definition of "freedom" enforced.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Jun 2017 @ 1:01pm

        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.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Jun 2017 @ 5:51pm

          Re: Re: Re: Lower Courts

          "Congress could strip those courts away"

          Not sure what, exactly, you meant with this.
          Sounds like you do not understand the three branches of government.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 20 Jun 2017 @ 6:14pm

            Re: Re: Re: Re: Lower Courts

            Congress has the authority to regulate the federal courts, and can strip away certain powers of the federal courts. This is much more limited however, for the Supreme Court.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 20 Jun 2017 @ 8:56pm

            Re: Re: Re: Re: 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?

            reply to this | link to this | view in chronology ]

            • icon
              Bergman (profile), 21 Jun 2017 @ 5:35am

              Re: Re: Re: Re: Re: 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.

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 21 Jun 2017 @ 9:13am

              Re: Re: Re: Re: Re: Lower Courts

              I am ignorant - I am able to admit it.

              Please explain the separation of powers.

              reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 20 Jun 2017 @ 3:14pm

      Re: Lower Courts

      It's cheaper to buy lower court judges - the lower the cheaper. Ideally, companies want to buy judges and congress-critters at the lowest level they can to save money, but high enough to handle cases that go national.

      reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 20 Jun 2017 @ 12:44pm

    Let me preemptively state this

    This supreme court ruling does NOT mean that privately owned sites cannot ban, downvote or hide troll posts, such as this one. They can. They should. And they already do so.

    reply to this | link to this | view in chronology ]

  • icon
    steell (profile), 20 Jun 2017 @ 1:22pm

    What about the Cox decision?

    Seems like this should make a Cox appeal a slam dunk. Cox lost the case because the Court determined they were guilty of "not" disconnecting customers due to allegations of copyright infringement, so it seems to me that the USSC has determined that to be unconstitutional.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jun 2017 @ 2:59pm

      Re: What about the Cox decision?

      And over at Torrentfreak there's an article today about Grande being in a similar case with the RIAA.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jun 2017 @ 3:00pm

      Re: What about the Cox decision?

      Oh no, you see, copyright infringement is much worse than sexually abusing children. Obviously this ruling doesn't apply to even accusations of copyright infringement. Pedophiles we can tolerate on the internet, but not alleged copyright offenders.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 20 Jun 2017 @ 4:01pm

      Re: What about the Cox decision?

      Yes, working on a post about that exact point. This should help Cox quite a bit.

      reply to this | link to this | view in chronology ]

  • icon
    Peter (profile), 20 Jun 2017 @ 1:30pm

    Not helping. Not at all ...

    ... with Rightscorp new extortion campaign. What are those supreme court judges thinking, pulling the carpet under the MAFIA enforcers feet and leaving them hanging to dry? (die? one can hope ...)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jun 2017 @ 3:04pm

    Except the crime of poverty.

    You can still be banned for that.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 21 Jun 2017 @ 5:38am

      Re: Except the crime of poverty.

      You can also starve to death, drown in a river or freeze to death because you bought a new XBox instead of paying your heating oil bill.

      But so what?

      reply to this | link to this | view in chronology ]

      • identicon
        I Love Capitalism, 21 Jun 2017 @ 6:35pm

        Re: Re: Except the crime of poverty.

        Exactly. Everything has a price, even so-called "rights". You can have all the "rights" you can afford.

        reply to this | link to this | view in chronology ]

  • icon
    charliebrown (profile), 20 Jun 2017 @ 4:35pm

    Awww, Hollywood, do you guys need an icepack for the big gigantic slap in the face you just got? Well I know you paid for the icepack already but that'll be another $5 to freeze it (which will convert the contents to a different format)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jun 2017 @ 6:17pm

    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.

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 20 Jun 2017 @ 8:16pm

      Re:

      If someone demonstrates the ability to hack into a nuclear plant from the internet, then maybe - just maybe - it's the nuclear plant that should banned from the internet.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 21 Jun 2017 @ 12:28am

      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.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Jun 2017 @ 4:31am

        Re: Re:

        Why are your nuclear plants connected to the public internet?

        Same reason why a lack of oversight for the part of government that oversees copyright is permitted to waste millions of dollars a year. Because they can.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jun 2017 @ 9:42pm

    Morty - placed.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 21 Jun 2017 @ 4:54am

    BOOOOM.


    That was the sound of any X-strikes scheme being blown up. France should take note.

    reply to this | link to this | view in chronology ]

    • identicon
      Talmyr, 21 Jun 2017 @ 7:04am

      Re:

      Except that France isn't directly affected, and if the US companies can't ban users in the US, they may look to expand the X-strikes idea abroad where there are no pesky Constitutions. Then they will find some way to weasel them back in.

      reply to this | link to this | view in chronology ]


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