“The state has a reason? Yeah, it does. Does it limit free speech? Dramatically. Are there other, less restrictive ways of doing it? We’re not sure, but we think probably. . . . Okay. End of case, right?”
—-Supreme Court Justice Stephen Breyer, during oral argument in the case Packingham v. North Carolina, describing how state laws are traditionally seen by the Court as infringing on freedom of speech.
Lester Packingham was registered as a sex offender in 2002 after pleading guilty to statutory rape with a 13-year-old girl (he was 21). He served his time and probation, and then, in 2010, Packingham posted on Facebook to thank the Lord for a recently dismissed parking ticket, writing, “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? . . . Praise be to GOD, WOW! Thanks JESUS!”
Jesus, however, did not stop him from being prosecuted for that message under a 2008 North Carolina law that prohibits registered sex offenders from accessing social media, on the theory that it gives them access to minors.
Packingham appealed the resulting conviction, arguing that the law violated his First Amendment rights. The Supreme Court accepted the case, which could determine whether access to social media sites like Facebook, Youtube, and others are a fundamental right.
In oral argument this week, observers got the distinct impression that this is where the Court is headed. At least five justices, a majority of the temporarily reduced court, suggested during argument that they would rule against North Carolina and for Packingham , whose lawyer says that more than 1,000 people have been prosecuted under the law.
Reading various reports of what was said, I am stunned by how out of touch everyone involved sounds. The Washington Post story describes Justice Kagan like she’s a web-head because she’s “only” 59. “So whether it’s political community, whether it’s religious community, I mean, these sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights, haven’t they?” Kagan asked North Carolina Deputy Attorney General Robert C. Montgomery, who was defending the law.
Do we really have to ask that question today? The law was passed in 2008, which in technology and social media terms makes it archaic. Legislators can be forgiven for not understanding the central role of social media in American life nine years ago, but in 2017, when we have a President tweeting his every lucid thought (and many not so lucid), how can anyone defend the argument that blocking a citizen from social media isn’t an extreme government restriction on free speech? Laws related to technology should all have sunset provisions of a couple years (a couple months?) to ensure that they haven’t been rendered obsolete by the evolving societal use of and dependency on the web, the internet, and new devices.Breyer’s quote is also encouraging in ways that go beyond North Carolina’s incompetent and unethical law.
Somehow progressives, with the Democratic Party being pulled along into the dark, have come to favor speech restrictions. Bernie Sanders flogged the theme during his campaign, framing the SCOTUS ruling in Citizens United, which struck down Congress’s attempt to restrict political advocacy by organizations based on content, as a threat to democracy, and Hillary Clinton actually endorsed a Constitutional amendment to make the First Amendment weaker. During the campaign, Democrats seemed confident that the liberals on the Supreme Court, like Breyer and Kagan, shared their willingness to stifle free speech “for the greater good.”
I think they are wrong.