First Amendment - Freedom of Speech - Public Forum Doctrine - Packingham V. North Carolina

Harvard Law Review, November 2017 | Go to article overview

First Amendment - Freedom of Speech - Public Forum Doctrine - Packingham V. North Carolina


In Southeastern Promotions, Ltd. v. Conrad, (1) the Supreme Court advised that "[e]ach medium of expression ... be assessed for First Amendment purposes by standards suited to it, for each may present its own problems." (2) The Court heeded this instruction in its first major decision broaching the relationship between the internet and the First Amendment, 1997's Reno v. ACLU, (3) in which it declared that the "special justifications for regulation of the broadcast media" did not apply to "the vast democratic forums of the Internet." (4) After a twenty-year hiatus, the Court revisited this relationship last Term in Packingham v. North Carolina. (5) Packingham held unconstitutional a state statute prohibiting registered sex offenders from accessing "commercial social networking Web site[s]" (6) that permit use by minors. (7) In denominating the internet--with pride of place for social media (8) like Facebook and Twitter--as "the modern public square," (9) the Court full-throatedly committed to analyzing this communicative mode in a "spatial context." (10) But Packingham's expansive language--particularly its framing of the internet as a public space--opened a Pandora's box, with repercussions for certain First Amendment precepts. Most notably, the Court's public space rhetoric implied that the public forum doctrine might be pliable enough to encompass the internet and social media--even as such rhetoric, in failing to account for the hybrid public and private nature of digital realms, was crucially incomplete. In so doing, Packingham neglected the instruction of Southeastern Promotions, as well as its own internal warning of "extreme caution" (11) in digitizing First Amendment precedents.

In 2008 North Carolina criminalized the accessing of "a commercial social networking Web site" by a registered sex offender in instances "where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages." (12) The statute defined "a commercial social networking Web site" through four requirements: first, the site "[i]s operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site:; (13) second, it "[facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges"; (14) third, it "[a]llows users to create Web pages or personal profiles" that include information like a user's name or nickname, photographs posted by a user, and accessible links to the personal profiles of a user's "friends or associates" on the same site; (15) and fourth, it "[p]rovides users or visitors ... mechanisms to communicate with other users." (16)

Petitioner Lester Gerard Packingham was one of approximately 20,000 registered sex offenders covered by the North Carolina statute and among more than 1000 individuals prosecuted for violating it. (17) In 2002 the twenty-one-year-old Packingham pleaded guilty to taking indecent liberties with a thirteen-year-old girl and registered as a sex offender per North Carolina law. (18) In 2010 the Durham Police Department began actively investigating profiles on social media platforms as part of its campaign to enforce North Carolina's ban on the use of commercial social networking sites by sex offenders. (19) Around the same time, Packingham posted a statement on Facebook following a state court's dismissal of a traffic ticket against hims. (20) An officer later came across this posting on the profile of a "J.R. Gerrard," which he confirmed as an alias of registered-sex offender Packingham. (21) A grand jury then indicted Packingham "for maintaining at least one personal Web page or profile on Facebook.com," in violation of the ban. (22)

Packingham unsuccessfully moved to dismiss the charge, arguing that the prohibition on accessing commercial social networking sites violated the First Amendments. …

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