This week the U.S. Supreme Court decided Packingham v. North Carolina, a first amendment challenge to a state statute that prohibited convicted sex offenders from accessing certain “commercial social networking” sites. I include cases like this that involve the protection of minors, harassment, stalking, and the like under the rubric of “cybersecurity” because these issues of personal online safety relate to the stability and security of the “place” we call “cyberspace.” In fact, it’s in these kinds of cases that the courts often grapple with the “place-ness” of cyberspace. That grappling is central to the majority and concurring opinions in Packingham.
Many states have statutes that prohibit or limit registered sex offenders from accessing Internet content, including social media. North Carolina’s statute defined “social networking Website” broadly. It arguably would have covered not only sites such as Facebook and Twitter, but also shopping, news, health, career, or other sites with comment boards.
Packingham was convicted in 2002 of sexual contact with a minor. As a result, he was required to register as a sex offender, and was barred from accessing “social networking Websites” under the North Carolina statute. In 2010, Packingham received a traffic ticket, which subsequently was dismissed. He posted a religiously-themed message on his Facebook page celebrating the dismissal. As a result of this posting, he was convicted of violating the social media statute.
A unanimous 8-Justice Supreme Court (Justice Gorsuch did not participate in the case) struck down North Carolina’s statute as unconstitutional under the First Amendment. Justice Kennedy wrote the Court’s opinion, but Justice Alito wrote a concurrence, joined by Justices Roberts and Thomas, disagreeing with some of Justice Kennedy’s reasoning. Both opinions are notable for their Internet exceptionalism, but Justice Kennedy’s opinion seems like an exceptional kind of exceptionalism.
Both the majority and concurring opinions applied the same legal doctrine based on the assumption that the North Carolina statute is “content neutral.” Government regulation that restricts the time, place or manner of speech, but not the content of speech, generally is subject to “intermediate scrutiny” by the courts. Under intermediate scrutiny, the regulation must “be narrowly tailored to serve a significant governmental interest,” which means the regulation “must not burden substantially more speech than is necessary to further the government’s legitimate interests.” Opinion at 6 (internal quotations omitted). All of the Justices agreed that the protection of children online is a significant government interest but that the North Carolina statute burdened substantially more speech than necessary to further online child protection. Justices Kennedy and Alito disagreed somewhat, however, on how to frame the question of how much speech was burdened.
Justice Kennedy suggested that “[a] fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” Id. at 4. Justice Kenendy makes clear that he views cyberspace as such a “place”:
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 . . . and social media in particular.
Id. at 5. Not only is cyberspace one of the most important “places” of civil discourse today, according to Justice Kennedy
While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious what they say today might be obsolete tomorrow.
Id. at 6.
In his concurrence, Justice Alito complained that “[t]he Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.” Alito Concurring Opinion, at 1. For Justice Alito, it was clear that the North Carolina statute would prohibit access to many websites that provided little or not risk of child exploitation. However, he argued that “if the entirety of the internet or even just ‘social media’ sites are the 21st century equivalent of public streets and parks, then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offenders.” Id. at 10.
It seems, then, that Justice Alito took a more cautious, less exceptionalist line than Justice Kennedy. At the conclusion of his concurrence, however, Justice Alito agreed that “[c]yberspace is different from the physical world. . . .” Id. at 11. For Justice Alito, this difference warrants careful evaluation of individual cases, “one step at a time.” Id. at 11.
My own sense of the judicial role, combined with the dynamic nature of the Internet, leads me to agree more with Justice Alito than Justice Kennedy. There is something different about cyberspace, and this difference does make the nexus between liberty and security — not least as that nexus involves the freedoms of speech and association — exceedingly difficult. But these difficulties are not anything new for courts. In cases that implicate technological change, a court’s job is to understand how the particular technology at issue in a particular case or controversy relates to the legal doctrine applicable to that particular case or controversy. Hand-waving over the word “cyberspace” is no excuse for sloppy judging.
Perhaps equally importantly, because the balance between liberty and security in cyberspace is difficult, courts should be careful about usurping legislative judgment. Critics of sex offender social media bans often point to social science research that suggests restricting social media use has no effect on recidivism or child safety and that “sex offenders” cannot be treated as a homogeneous group. The primary risk to children, according to some of this literature, is from adult men who are not pathologically pedophiles but who groom adolescent girls out of a sense of power or danger. I wonder if such studies are too focused on recidivism rather than on the possible deterrent effect for potential first-time offenders. Even more significantly, I also think such studies can overlook the harm caused to children in the production of child pornography and the role of social networking sites and technologies in facilitating child pornography collection exchanges. Indeed, even the authors of such research have noted that “[t]he development of new technologies and social media often outpaces the study of its use in the commission of crimes, which poses a unique challenge for further study.” Chan, McNeil and Binder, Sex Offenders in the Digital Age, The Journal of the American Academy of Psychiatry and the Law 44:3 (2016). Legislatures might be even better positioned than courts to evaluate and adjust to social science and other research that can inform policy.