The SCOTUS Says (Cyber)Space Is the Place (For An Exchange of Views)

e> From 2008 up until June 19th, 2017, North Carolina law, specifically, N. C. Gen. Stat. Ann. §§14–202.5(a), (e) made 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.”

If that sounds pretty broad, it is. That definition includes virtually any social media platform with which you might be familiar, including Facebook, Instagram, Twitter and many others.¹ It's also worth noting that the conduct criminalized by the statute was simply accessing or using the site at all, not any specific conduct having to do with the underlying issue of being a sex offender, such as "conduct that often presages a sexual crime" The text of the law was sufficiently broad that many civil rights groups and First Amendment scholars worried that it was constitutionally overbroad, and a threat to free speech.

Lester Gerard Packingham is a North Carolina resident who was placed on the state's sex offender registry for "taking 'indecent liberties'" with a minor in 2002 as a 21-year-old college student. He was convicted in 2010 under §§14–202.5 for posting on Facebook that “God is good” after successfully contesting a traffic ticket. A law enforcement officer investigating possible violations of §§14–202.5 by registered individuals became interested, got a search warrant and confirmed both that the poster was Mr. Packingham and that he was on the registry.

The North Carolina Court of Appeals reversed Packingham's conviction, holding that "the social media website provision of the law was unconstitutional." However, the North Carolina Supreme Court, after an appeal from the state, reversed that holding and held that the law was constitutional because it was a “limitation on conduct” and not a restriction of free speech. Packingham sought and was granted certiorari by the Supreme Court, which just this week reversed and remanded, ruling that the North Carolina statute was unconstitutional, and that to "foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights."

The court also recognized that "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 [and] . . . social media in particular." It is this aspect of the case that may well be the most interesting to Lumen and its users. In certain respects, the United States, despite being the birthplace of the internet as we know it, is arriving a little late to this particular party, which has been burgeoning globally for some time. Here are just a few examples.

• In 2009 the French Constitutional Council declared that Internet Access was a "Basic Human Right Also in 2009, Finland declared 1MB broadband to be a legal right, with a counselor for the Ministry of Transport and Communications stating "We think it's something you cannot live without in modern society. Like banking services or water or electricity, you need Internet connection."

• A 2010 BBC poll found 79% of respondents regarded Internet access "as a fundamental right."

• In 2011, Frank La Rue, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, submitted a report to the UN's Human Rights council, in which he stated, among other things, that "There should be as little restriction as possible to the flow of information via the Internet, except in a few, very exceptional, and limited circumstances prescribed by international human rights law."

• In 2012 survey by Internet Society found 83% of respondents somewhat or strongly agreeing that "Access to the Internet should be considered a basic human right."

• In 2016, the UN released a non-binding resolution condemning Internet access disruption as a human rights violation."

But it was only as recently as 2014 that various U.S. courts (likely recognizing the ubiquity of the Internet in d