The case is Packingham v. North Carolina, decided on June 19. The defendant was convicted of having relations with a 13 year old when he was 21. Later on, he posted an unrelated message on Facebook about his positive experience in traffic court. That Facebook message broke the law because children use Facebook. Writing for the majority, Justice Kennedy as usual employs sweeping language about constitutional freedoms (if you want proof of this, Google "sweet mystery of life" and "Justice Kennedy"). Here, the Court notes how the First Amendment protects speech in the public forum:
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. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.
The public forum cases were decided long before anyone had ever thought of the Internet and social media. But social media today is sort of like the Town Square of the olden days, except that on social media no one speaks to each other face to face. Justice Kennedy is trying to bring the Court into the modern age, writing, "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. Seven in ten American adults use at least one Internet social networking service. One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. ...
Social media offers 'relatively unlimited, low-cost capacity for communication of all kinds.' ... '[S]ocial media users employ these websites to engage in a wide array of protected First Amendment activity on topics 'as diverse as human thought.'”
Continuing with the sweeping language, Justice Kennedy writes:
The nature of a revolution in thought can be that, in its early stages, even its participants may be unaware of it. And when awareness comes, they still may be unable to know or foresee where its changes lead. So too here. 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 that what they say today might be obsolete tomorrow.This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.
The Court recognizes the dangers associated with sexual abuse of minors. The Court notes that danger in this ruling. But that does not outweigh the First Amendment violation posed by this law. The Court notes that "the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. 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. They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.”
Justice Alito concurs in the result of this case but he also warns against any ruling that would mean that the Internet is a true Public Square for First Amendment purposes. He writes (with Chief Justice Roberts and Justice Thomas signing along) as follows:In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.
I am troubled by the Court’s loose rhetoric. After noting that “a street or a park is a quintessential forum for the exercise of First Amendment rights,” the Court states that “cyberspace” and “social media in particular” are now “the most important places (in a spatial sense) for the exchange of views.” The Court declines to explain what this means with respect to free speech law, and the Court holds no more than that the North Carolina law fails the test for content-neutral “time, place, and manner” restrictions. But 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. May a State preclude an adult previously convicted of molesting children from visiting a dating site for teenagers? Or a site where minors communicate with each other about personal problems? The Court should be more attentive to the implications of its rhetoric for, contrary to the Court’s suggestion, there are important differences between cyberspace and the physical world.