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posted on 7/2/17

The 2016-17 Supreme Court term has been devoid of many headline-grabbing cases, but Packingham v. North Carolina is one of the few exceptions. This case is noteworthy because in it the Supreme Court has ruled that your right to use Facebook is protected under the first amendment.

The Case

The dispute centered around a North Carolina law which prohibits registered sex offenders from accessing “a commercial social networking Web site where the sex offender knows that the site permits minor children to become members.”

In 2002, Lester Packingham, who was then 31, pleaded guilty to taking indecent liberties with a 13-year-old girl; as part of his sentence, he agreed to register as a sex offender for the next 30 years. Eight years later, Mr. Packingham posted a message on Facebook under a pseudonym. The message expressed Mr. Packingham’s relief and thanksgiving over a dismissed traffic ticket. He was subsequently prosecuted for violating the non-access site and convicted. A lower appeals court overturned that decision, ruling that the law violated the First Amendment.

Writing for the Court, Justice Anthony Kennedy affirmed the appellate court’s decision and invalidated the law. “This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet,” he observed. Therefore, “the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium,” he added. In other words, the broad nature of a law that banned all social media activity spooked the Justices. More on that in a minute.

Justice Kennedy went on to declare that Facebook and other social media sites, like LinkedIn and Pinterest, are “the modern public square” where people go to obtain information about current events, find jobs, and otherwise “explore the vast realms of human thought and knowledge.”

Illinois Law

The Prairie State has a similar and narrower law that requires registered sex offenders to disclose “all blogs and other Internet sites maintained by the sex offender or to which the sex offender has uploaded any content or posted any messages or information.” If the material is germane to the underlying offense, or if the offender tries to hide information, the state will probably prosecute the offender.

Prosecutors and defense attorneys will probably also consider the nature of the site. For example, if the offender registered because of a sexual offense against a minor, prosecutors may take action if the person posted on Instagram, Snapchat, or other sites that cater to younger users.

Takeaways

Packingham is yet another recent case in which the Supreme Court has interpreted the First Amendment very broadly. Some of these cases were extremely controversial, such as 2010’s Citizens United v. FCC, in which a deeply-divided Court essentially said that political contributions were protected political speech.

As Justice Kennedy noted, Packingham is the first case which extended these broad principles to the Internet. Most likely, it will not be the last one either, and unless the Supreme Court either drastically changes membership or several Justices have an unexpected change of heart, these future decisions will probably reach the same result.

Connect with Experienced Attorneys

The courts may or may not uphold your constitutional rights, but an aggressive attorney always fights for you. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.

(image courtesy of Parker Byrd)