The Supreme Court keeps on accepting First Amendment cases—perhaps because among the current Court there is much agreement on the First Amendment, so being down a Justice doesn’t matter. This does not bode well for state and local governments, like North Carolina in this case. For better or worse, this case like Expressions Hair Design v. Schneiderman, accepted in September, gives the Supreme Court a chance to refine its holding in Reed v. Town of Gilbert, Arizona (2015).  

The issue in Packingham v. North Carolina is whether a North Carolina law prohibiting registered sex offenders from accessing commercial social networking websites where the registered sex offender knows minors can create or maintain a profile, violates the First Amendment.

Lester Packingham was charged with violating this statute because he accessed Facebook. In the posting that got him in trouble Packingham thanked God for the dismissal of a ticket.

The North Carolina Supreme Court held that the North Carolina’s law is constitutional “in all respects.” Lower courts have struck down similar laws from Indiana and Louisiana.

The court first concluded that North Carolina’s law regulates “conduct” and not “speech,” “specifically the ability of registered sex offenders to access certain carefully-defined Web sites.”

The court then concluded that the statute is a “content-neutral” regulation because it “imposed a ban on accessing certain defined commercial social networking Web sites without regard to any content or message conveyed on those sites.” A dissenting judge took issue with the court’s conclusion the statute isn’t content-based citing Reed v. Town of Gilbert, Arizona (2015) because the statute prohibits registered sex offenders from accessing some website and not others based on the content of the websites. In Reed the Supreme Court adopted a broad definition of content-based when striking down the town’s sign ordinance. 

Finally, the North Carolina Supreme Court concluded the statute was narrowly tailored to prohibit registered sex offenders from accessing websites where they could gather information about minors. While the court admitted the statute “could have been drafted even more narrowly,” it didn’t impose “a blanket prohibition against Internet use.” Registered sex offenders could still use websites “exclusively devoted to speech” including instant messaging services and chat rooms, websites requiring no more than an a user name and email address to access content, and websites where users must be at least 18 to maintain a profile.

In his certiorari petition Packingham criticizes what he describes as the court’s “it could have been worse” reasoning “giving the Legislature credit for what it did not do, i.e., enact a complete ban on internet use, but never considering whether the sweeping, onerous burdens the law does impose are necessary or why the State’s concerns about communications with (or ‘gathering information’ about) minors for nefarious purposes could not be pursued through measures . . . directly targeting that deplorable behavior.”