[Eugene Volokh] Supreme Court agrees to consider N.C. ban on sex offenders’ access to most prominent social networks

(Chris Ratcliffe/Bloomberg)

The Supreme Court has just agreed to hear Packingham v. North Carolina, a case I’ve been following closely — my students Jeremy Page, Mike Romeo and Sydney Sherman, and I filed a friend-of-the-court brief supporting the petition for Supreme Court review, filed on behalf of professors Ashutosh Bhagwat, Richard Garnett, Andrew Koppelman, Seth Kreimer, Lawrence Lessig, Sanford Levinson, Robert O’Neil, David Post, Lawrence Sager, Seana Shiffrin, Steven Shiffrin, Geoffrey Stone, Nadine Strossen, William Van Alstyne and James Weinstein. Given this, I thought I’d repost my discussion of the case and of our brief.

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North Carolina bans registered sex offenders from accessing any social media sites that allow under-18-year-olds to post; these include Facebook, Twitter and more. The law isn’t limited to people who are in prison or on probation (whose First Amendment rights are sharply reduced because of that); it applies even to people who have finished serving their sentences. Nor is the law limited to sex offenders who committed crimes against minors (though I think that too would be unconstitutional). Rather, the law makes it a crime for any registered sex offender to either post to such a site or even read it, on the theory that the law is needed “to prevent registered sex offenders from prowling on social media and gathering information about potential child targets.” Yet in November the North Carolina Supreme Court upheld the statute, by a 4-2 vote.

I think there are many First Amendment problems with the North Carolina Supreme Court decision, and the petition for Supreme Court review filed in this case (Packingham v. N.C.) lays them out well; see also David Post’s blog post on the case, published after the North Carolina decision came down. There’s also a split among lower courts on this very issue, as the petition (cowritten by our very own John Elwood) also explains. But here I want to focus on the argument stressed in our amicus brief — the “ample alternative channels” inquiry.

The Supreme Court has held that content-neutral speech restrictions (e.g., limits on noise, on the size of demonstrations, and so on) can be upheld if they are “narrowly tailored” to an “important government interest” and leave open “ample alternative channels” for expression. Thus, relatively modest burdens on speech (ones that leave open ample alternative channels) are subject to relatively government-friendly review (the requirement that the law be narrowly tailored to an important government interest, with “narrow tailoring” being read in a not especially strict way). But more serious burdens on speech (ones that don’t leave open ample alternative channels) are subject to far more demanding scrutiny. The North Carolina Supreme Court purported to apply this test.

How can a total ban on some people’s use of Facebook, Twitter and the like be said to leave open “ample alternative channels”? Here is the North Carolina Supreme Court’s explanation (paragraph break and emphases added):

In his brief and argument to this Court, defendant lists numerous well-known Web sites that he contends he could not access legally. In considering those and other similar sites, we find that even where defendant is correct, the Web offers numerous alternatives that provide the same or similar services that defendant could access without violating N.C.G.S. § 14-202.5.

For example, defendant would not violate N.C.G.S. § 14-202.5 by accessing the Paula Deen Network, a commercial social networking Web site that allows registered users to swap recipes and discuss cooking techniques, because its Terms of Service require users to be at least eighteen years old to maintain a profile. Similarly, users may follow current events on WRAL.com, which requires users to be at least eighteen years old to register with the site and, as a resul