Packingham v. North Carolina: A Precautionary Approach to the Modern Public Square

By Jack F. Williams, Staff Member (Vol. 16)

In 2008, the North Carolina legislature passed the “Protect Children from Sexual Predators Act.” As part of the Act, subsection 14-202.5 banned the use of “commercial social networking Web sites by any registered sex offender.” The statute applied to about “20,000 people in North Carolina” and reports estimate that the State has prosecuted “over 1,000 people for violating it.”

In 2012, Lester Gerald Packingham was indicted for violating the statute and was found guilty by a jury. He appealed his conviction, and in 2013 the North Carolina Court of Appeals reversed the trial court decision, finding the North Carolina statute was unconstitutional on First Amendment grounds.

In 2015, the North Carolina Supreme Court reversed the Court of Appeals’ decision, finding the statute constitutional, both facially and as applied. The U.S. Supreme Court reversed this decision in 2017 holding  that the North Carolina statute “impermissibly restricts lawful speech in violation of the First Amendment.”

Since the advent of the modern Internet, courts have struggled to define exact what it is in the context of the First Amendment. Is it more like a park, a cable network, or a street? Could it be considered a “public forum” or a quasi-public forum and be subjected to the same level of judicial scrutiny? As with so many cases in First Amendment law, framing the issues often is determinative of the outcome.

Because of the many conceptualizations of the Internet, there is not a standard approach to free speech online. Because of this, courts are cautious when developing new jurisprudence regarding free speech in the Internet context so as not to constrain the expansion of the new technology, and also not to have their rulings undermined by its rapid expansion. Changes in the law often come at a snail’s pace in comparison to the near exponential change seen in the online sphere.

Although our society is only beginning to grapple with the vast array of new problems created by the Internet, the Supreme Court has only weighed in on Internet related issues in the context of “regulations seeking to protect children from exploitation and from viewing obscene and indecent material.” Even in this context, the Court’s jurisprudence is shockingly small. From 1996 to 2012, the Supreme Court issued “just under 1,400 opinions” of which only 17 “mention the Internet substantively” and of those 17 only seven “were actually about the Internet.”

The Court’s decision to dip its toes into the vast ocean of the Internet, rather than dive head first, is shown by its narrow focus on cases dealing with the protection of children in the online sphere. Here, there can be no doubt about the magnitude of the government’s interest or about its traditional powers to protect such persons.

While all three courts in the Packingham saga agreed that there was a compelling state interest in protecting minors from predatory behavior by sex offenders on the Internet, that is where the similarities ended. The U.S. Supreme Court agreed with many of the positions taken by both the North Carolina Court of Appeals and the dissenting justices on the North Carolina Supreme Court in analyzing the statute.

Germane to their analyses was the extreme breadth of the statute. All three opinions stressed that the statute covered a vast array of websites, not just commercial social networking websites. The statute’s broad scope failed the narrow tailoring analysis in all three opinions.

Although the U.S. Supreme Court did not take up the issue, the dissenting justices on the North Carolina Supreme Court agreed with the Appeals Court that the statute also failed the tailoring analysis because it covered many more offenders than just those whose crimes involved minors. Because of this, the law burdened more speech than was necessary to satisfy the government interest.

In deciding Packingham, the U.S. Supreme Court again showed its hesitation in addressing regulation of speech on the Internet, even in the context of the protection of minors. To the dismay of many state legislatures, the Court did not lay down any standard by which to write other online sex offender statutes.

The Court continues to use existing First Amendment framework from other contexts to analyze online speech restrictions, which if nothing else, offers predictability of result. It is unclear what set of facts or circumstances will force the Court into the open to lay down new jurisprudence regarding the First Amendment in the online sphere.