Packingham v. North Carolina
Annotate this Case
582 US ___ (2017)
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
LESTER GERARD PACKINGHAM, PETITIONER v. NORTH CAROLINA
on writ of certiorari to the supreme court of north carolina
[June 19, 2017]
Justice Alito, with whom The Chief Justice and Justice Thomas join, concurring in the judgment.
The North Carolina statute at issue in this case was enacted to serve an interest of “surpassing importance.” New York v. Ferber, 458 U. S. 747, 757 (1982) —but it has a staggering reach. It makes it a felony for a registered sex offender simply to visit a vast array of websites, including many that appear to provide no realistic opportunity for communications that could facilitate the abuse of children. Because of the law’s extraordinary breadth, I agree with the Court that it violates the Free Speech Clause of the First Amendment.
I cannot join the opinion of the Court, however, because of its undisciplined dicta. The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks. Ante, at 4–5. And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers. I am troubled by the implications of the Court’s unnecessary rhetoric.
The North Carolina law at issue makes it a felony for a registered sex offender “to access 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.” N. C. Gen. Stat. Ann. §§14–202.5(a), (e) (2015). And as I will explain, the statutory definition of a “commercial social networking Web site” is very broad.
Packingham and the State debate the analytical framework that governs this case. The State argues that the law in question is content neutral and merely regulates a “place” (i.e., the internet) where convicted sex offenders may wish to engage in speech. See Brief for Respondent 20–25. Therefore, according to the State, the standard applicable to “time, place, or manner” restrictions should apply. See Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989) . Packingham responds that the challenged statute is “unlike any law this Court has considered as a time, place, or manner restriction,” Brief for Petitioner 37, and he advocates a more demanding standard of review, id., at 37–39.
Like the Court, I find it unnecessary to resolve this dispute because the law in question cannot satisfy the standard applicable to a content-neutral regulation of the place where speech may occur.
A content-neutral “time, place, or manner” restriction must serve a “legitimate” government interest, Ward, supra, at 798, and the North Carolina law easily satisfies this requirement. As we have frequently noted, “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Ferber, supra, at 757. “Sex offenders are a serious threat,” and “the victims of sexual assault are most often juveniles.” McKune v. Lile, 536 U. S. 24, 32 (2002) (plurality opinion); see Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1, 4 (2003) . “[T]he . . . interest [of] safeguarding the physical and psychological well-being of a minor . . . is a compelling one,” Globe Newspaper Co. v. Superior Court, County of Norfolk, 457 U. S. 596, 607 (1982) , and “we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights,” Ferber, supra, at 757.
Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” McKune, supra, at 33 (plurality opinion); see United States v. Kebodeaux, 570 U. S. ___, ___–___ (2013) (slip op.,at 8–9).
The State’s interest in protecting children from recidivist sex offenders plainly applies to internet use. Several factors make the internet a powerful tool for the would-be child abuser. First, children often use the internet in a way that gives offenders easy access to their personal information—by, for example, communicating with strangers and allowing sites to disclose their location. Second, the internet provides previously unavailable ways of communicating with, stalking, and ultimately abusing children. An abuser can create a false profile that misrepresents the abuser’s age and gender. The abuser can lure the minor into engaging in sexual conversations, sending explicit photos, or even meeting in person. And an abuser can use a child’s location posts on the internet to determine the pattern of the child’s day-to-day activities—and even the child’s location at a given moment. Such uses of the internet are already well documented, both in research and in reported decisions.
Because protecting children from abuse is a compelling state interest and sex offenders can (and do) use the internet to engage in such abuse, it is legitimate and entirely reasonable for States to try to stop abuse from occurring before it happens.
It is not enough, however, that the law before us is designed to serve a compelling state interest; it also must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U. S., at 798–799; see also McCullen v. Coakley, 573 U. S. ___, ___–___ (2014) (slip op., at 18–19). The North Carolina law fails this requirement.
A straightforward reading of the text of N. C. Gen. Stat. Ann. §14–202.5 compels the conclusion that it prohibits sex offenders from accessing an enormous number of websites. The law defines a “commercial social networking Web site” as one with four characteristics. First, the website must be “operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site.” §14–202.5(b)(1). Due to the prevalence of advertising on websites of all types, this requirement does little to limit the statute’s reach.
Second, the website must “[f]acilitat[e] the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.” §14–202.5(b)(2). The term “social introduction” easily encompasses any casual exchange, and the term “information exchanges” seems to apply to any site that provides an opportunity for a visitor to post a statement or comment that may be read by other visitors. Today, a great many websites include this feature.
Third, a website must “[a]llo[w] users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Web site.” §14–202.5(b)(3) (emphasis added). This definition covers websites that allow users to create anything that can be called a “personal profile,” i.e., a short description of the user. Con-trary to the argument of the State, Brief for Respondent 26–27, everything that follows the phrase “such as” is an illustration of features that a covered website or personal profile may (but need not) include.
Fourth, in order to fit within the statute, a website must “[p]rovid[e] users or visitors . . . mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.” §14–202.5(b)(4) (emphasis added). This requirement seems to demand no more than that a website allow back-and-forth comments between users. And since a comment function is undoubtedly a “mechanis[m] to communicate with other users,” ibid., it appears to follow that any website with such a function satisfies this requirement.
The fatal problem for §14–202.5 is that its wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child. A handful of examples illustrates this point.
Take, for example, the popular retail website Amazon.com, which allows minors to use its services and meets all four requirements of §14–202.5’s definition of a commercial social networking website. First, as a seller of products, Amazon unquestionably derives revenue from the operation of its website. Second, the Amazon site facilitates the social introduction of people for the purpose of information exchanges. When someone purchases a product on Amazon, the purchaser can review the product and upload photographs, and other buyers can then respond to the review. This information exchange about products that Amazon sells undoubtedly fits within the definition in §14–202.5. It is the equivalent of passengers on a bus comparing notes about products they have purchased. Third, Amazon allows a user to create a personal profile, which is then associated with the product reviews that the user uploads. Such a profile can contain an assortment of information, including the user’s name, e-mail address, and picture. And fourth, given its back-and-forth comment function, Amazon satisfies the final statutory requirement.
Many news websites are also covered by this definition. For example, the Washington Post’s website gives minors access and satisfies the four elements that define a commercial social networking website. The website (1) derives revenue from ads and (2) facilitates social introductions for the purpose of information exchanges. Users of the site can comment on articles, reply to other users’ comments, and recommend another user’s comment. Users can also (3) create personal profiles that include a name or nickname and a photograph. The photograph and name will then appear next to every comment the user leaves on an article. Finally (4), the back-and-forth comment section is a mechanism for users to communicate among themselves. The site thus falls within §14–202.5 and is accordingly off limits for registered sex offenders in NorthCarolina.
Or consider WebMD—a website that contains health-related resources, from tools that help users find a doctor to information on preventative care and the symptoms associated with particular medical problems. WebMD, too, allows children on the site. And it exhibits the four hallmarks of a “commercial social networking” website. It obtains revenue from advertisements. It facilitates information exchanges—via message boards that allow users to engage in public discussion of an assortment of health issues. It allows users to create basic profile pages: Users can upload a picture and some basic information about themselves, and other users can see their aggregated comments and “likes.” WebMD also provides message boards, which are specifically mentioned in the statute as a “mechanis[m] to communicate with other users.” N. C. Gen. Stat. Ann. §14–202.5(b)(4).
As these examples illustrate, the North Carolina law has a very broad reach and covers websites that are ill suited for use in stalking or abusing children. The focus of the discussion on these sites—shopping, news, health—does not provide a convenient jumping off point for conversations that may lead to abuse. In addition, the social exchanges facilitated by these websites occur in the open, and this reduces the possibility of a child being secretly lured into an abusive situation. These websites also give sex offenders little opportunity to gather personal details about a child; the information that can be listed in a profile is limited, and the profiles are brief. What is more, none of these websites make it easy to determine a child’s precise location at a given moment. For example, they do not permit photo streams (at most, a child could upload a single profile photograph), and they do not include up-to-the minute location services. Such websites would provide essentially no aid to a would-be child abuser.
Placing this set of websites categorically off limits from registered sex offenders prohibits them from receiving or engaging in speech that the First Amendment protects and does not appreciably advance the State’s goal of protecting children from recidivist sex offenders. I am therefore compelled to conclude that, while the law before us addresses a critical problem, it sweeps far too broadly to satisfy the demands of the Free Speech Clause.
While I thus agree with the Court that the particular law at issue in this case violates the First Amendment, 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.” Ante, at 4–5. 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 per-sonal 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.
I will mention a few that are relevant to internet use by sex offenders. First, it is easier for parents to monitor the physical locations that their children visit and the individuals with whom they speak in person than it is to monitor their internet use. Second, if a sex offender is seen approaching children or loitering in a place fre-quented by children, this conduct may be observed by parents, teachers, or others. Third, the internet offers an unprecedented degree of anonymity and easily permits a would-be molester to assume a false identity.
The Court is correct that we should be cautious in applying our free speech precedents to the internet. Ante, at 6. Cyberspace is different from the physical world, and if it is true, as the Court believes, that “we cannot appreciate yet” the “full dimensions and vast potential” of “the Cyber Age,” ibid., we should proceed circumspectly, taking one step at a time. It is regrettable that the Court has not heeded its own admonition of caution.