The Internet is the “modern day town square” in which each of us can “become a town crier with a voice that resonates further than it could from any soapbox.”
“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. The most important forum is cyberspace, the “vast democratic forums of the Internet” in general and social media.
With these words the United States Supreme Court declared the primacy of the Internet as the ultimate free speech forum in Packingham v. North Carolina, (U. S. 15– 1194, 6/19/17).
The issue in this case was framed by a North Carolina law that prohibited a registered sex offender from accessing “…a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” This Statute had been applied to about 20,000 people in North Carolina and the state had prosecuted over 1000 sex offenders for violations.
Packingham (Petitioner), a 21-year-old college student, was convicted of having sex with a 13-year-old girl in 2002 requiring him to register as a sex offender under the statute. In 2010 Petitioner was prosecuted for a minor traffic offense, which was dismissed, however Petitioner posted a statement of gratitude on the Internet, thanking the Lord for his good fortune in not having to pay a fine. This post attracted the attention of law enforcement officials resulting in a check of the sex offender records leading to an indictment of Petitioner by a grand jury for violating the Statute.
Petitioner filed a motion to dismiss the indictment on the grounds that the Statute violated his First Amendment Right of free speech. Petitioner was ultimately convicted. Petitioner appealed to the North Carolina Supreme Court, which held that the statute was constitutional. The United States Supreme Court granted certiorari, unanimously holding that the Statute was unconstitutional because it violated the First Amendment Free Speech Clause.
This is no small deal considering there is a very strong public policy to prevent sex offenders from accessing the Internet to find children who might be susceptible to improper advances from adults. Sex offenders are known to continue their predatory practices of preying on minors.
The Court concluded that the statute burdened “…substantially more speech than is necessary to further the government’s legitimate interests.” The statute was not “narrowly tailored because it burdened “substantially more speech than is necessary to further the government’s legitimate interests.” For example, the Statute could bar access to commonplace “Websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com.”
“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.”
These statements establish Packingham as the leading case on First Amendment Free Speech rights on the Internet. It certainly leaves open more questions than it answers. For example, local government has tried to rein in the freewheeling effect of employees commenting about on frivolous details of the work environment (water cooler talk) by attempting to prohibit discussion of frivolous details about the work environment on social media. HR director’s, employee’s and public official’s involved in employment decisions need to look at any policy dealing with employee use of the Internet concerning employment activities (think social policy) to be sure that they have not restricted Free Speech.
Free speech is a topic that has occupied this writer for years leading to a large number of Post on this topic starting in 2011 with the Supreme Court’s decision in Brown v Entertainment Merchants Association, where the United States Supreme Court invalidated a law prohibiting violent video games for minors. The Free Speech cases have created a conundrum for local government attorneys and public officials. Our job is not gotten any easier because of the sweeping impact of these decisions, reaching the point where it takes special expertise to write ordinances, like a sign code, that might impact free speech.
To view other Posts on this blog pertaining to right of free speech click on links below.
https://momunicipallaw.com/2011/12/10/restricting-adult-entertainment/
https://momunicipallaw.com/2013/02/14/free-speech-and-prohibition-of-distribution-of-information/
https://momunicipallaw.com/2015/01/23/right-of-judges-to-personally-solicit-cam paign-contributions/
Howard Wright © 2017
Missouri Public Policy and Law 