Right to in­ter­net up­held.

Jus­tices: First Amend­ment ex­tends to so­cial me­dia

The Washington Times Daily - - FRONT PAGE - BY STEPHEN DI­NAN

The Supreme Court raised the prospects of a con­sti­tu­tional right to so­cial me­dia, rul­ing Mon­day that a con­victed sex of­fender can’t be barred from surf­ing the web be­cause of gen­eral fears he’ll be en­ticed into il­licit ac­tiv­ity.

The jus­tices said the in­ter­net is the mod­ern equiv­a­lent of parks or streets, where po­lit­i­cal dis­cus­sions raged un­der the pro­tec­tions of the First Amend­ment, and said gov­ern­ments need to tread care­fully when try­ing to cut off some­one’s ac­cess.

They struck down a North Carolina law that had pro­hib­ited sex of­fender from log­ging onto so­cial me­dia, say­ing that such a broad ban would be cut­ting some­one off from what has be­come the most ro­bust fo­rum for pol­i­tics, free speech and com­mer­cial ac­tiv­ity.

Jus­tice An­thony M. Kennedy, writ­ing the ma­jor­ity opin­ion, equated to­day’s in­ter­net to com­mu­nity parks, where he said the First Amend­ment has long reigned.

“So­cial me­dia al­lows users to gain ac­cess to in­for­ma­tion and com­mu­ni­cate with one an­other about it on any sub­ject that might come to mind,” he wrote. “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.”

All eight of the jus­tices who took part in the case agreed with the rul­ing that North Carolina’s law was un­con­sti­tu­tional. But Jus­tice Sa­muel A. Al­ito Jr., in a con­cur­ring opin­ion joined by two other jus­tices, seemed shocked by how far Jus­tice Kennedy was will­ing to go, call­ing the ma­jor­ity rul­ing “undis­ci­plined dicta.”

“The Court is un­able to re­sist mus­ings that seem to equate the en­tirety of the in­ter­net with pub­lic streets and parks,” he wrote, warn­ing of un­in­tended con­se­quences.

“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,” Jus­tice Al­ito said. “I am trou­bled by the im­pli­ca­tions of the Court’s un­nec­es­sary rhetoric.”

The case stemmed from 2002 in­ci­dent in which a 21-year-old col­lege stu­dent, Lester Ger­ard Pack­ing­ham, had sex with a 13-year-old girl. He pleaded guilty to tak­ing in­de­cent lib­er­ties with a child, was re­quired to reg­is­ter as a sex of­fender, and un­der North Carolina law was barred from ac­cess­ing so­cial me­dia — os­ten­si­bly to keep him from con­tact­ing a mi­nor.

In 2010, Mr. Pack­ing­ham logged onto Face­book to cheer his good for­tune in get­ting a traf­fic ticket dis­missed.

A po­lice of­fi­cer spot­ted the post, con­nected it to Mr. Pack­ing­ham, and he was con­victed and given a sus­pended sen­tence.

At no time did po­lice sug­gest his on­line ac­tiv­i­ties in­cluded any­thing aimed at mi­nors, ac­cord­ing to the court.

Jus­tice Kennedy said states could likely en­act laws ban­ning a con­victed sex of­fender from on­line be­hav­ior that often presages a fu­ture crime, such as “con­tact­ing a mi­nor or us­ing a web­site to gather in­for­ma­tion about a mi­nor.”

But he said a broader ban on on­line ac­tiv­ity can­not be stom­ached.

He said so­cial me­dia sites — and Face­book in par­tic­u­lar — have be­come the pre­mier place for po­lit­i­cal con­ver­sa­tions among Amer­i­cans, and are also used for com­mu­ni­ca­tions from elected of­fi­cials to their con­stituents.

“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,” he wrote.

Adam Schwartz, a lawyer with the Elec­tronic Fron­tier Foun­da­tion, which filed briefs in the case op­pos­ing the law, said all eight jus­tices agreed that the gov­ern­ment has a high bur­den of proof when it comes to re­strict­ing in­ter­net ac­cess.

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