Packingham Brings Relationship Between First Amendment And The Internet To The Forefront

The relationship between the First Amendment and the Internet has received surprisingly limited attention from the Supreme Court, given its central role in modern.  The U.S. Supreme Court did address the issue as early as 1997, when it struck down the Communications Decency Acton First Amendment grounds in Reno v. ACLU, 521 U.S. 844 (1997).  However, the Court has largely been silent on the issue in the subsequent twenty years.  In that time, the Internet has become a central pillar of American life, with social media in particular playing an increasingly large role how people socialize and interact. In Packingham v. North Carolina, 137 S.Ct. 1730 (2017), the U.S. Supreme Court addressed this issue directly, setting off a flurry of legal action to further define the right of free speech in the digital realm.

Writing for the majority, Justice Kennedy noted that Packingham was one of the Court’s first cases “to address the relationship between the First Amendment and the modern Internet.”  The case centered on the constitutionality of a North Carolina law that made it a felony for a registered sex offender to knowingly access a social networking site on which minors can be members.  All eight participating Justices voted to strike down the law as violating the First Amendment (Gorsuch did not take part in the decision), with Kennedy writing for a five Justice majority and Justice Alito penning a concurring opinion for the remaining three Justices.  The point of dispute between the two opinions was the majority’s broad (or as Justice Alito described it, overly broad) dicta about the role of the Internet and social media in modern society, both as a forum for the exchange of ideas and as a source of news and information entitled to First Amendment protections.

Historically, First Amendment jurisprudence has sought to protect free speech based upon the type of forum where the speech occurred, with the broadest protections being afforded to “traditional public forums” like a street or park.  In Packingham, the majority declared that “[w]hile 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—the ‘vast democratic forums of the Internet’ in general, and social media in particular.”  While the Court did not explicitly categorize the Internet as a specific type of forum, its analogy of the Internet to a traditional public forum suggests that limits on online speech will be subject to strict scrutiny.

The Packingham decision also touched upon the role of social media in facilitating political speech and communicating with elected officials. After noting that seven in ten American adults use at least one online social networking service, the Court described Facebook as a forum for users to “debate religion and politics with friends and neighbors.”  The Court also noted that Twitter allows its users to “petition their elected representatives… in a direct manner,” and emphasized that all fifty governors and nearly every member of Congress has established a Twitter account to communicate with their constituents. 

As will be addressed in subsequent posts, the Supreme Court’s decision in Packingham, and the broad dicta about the role of the Internet in modern society has touched off a flurry of legal filing against state and local governments and their officials over how their social media is utilized.  As such, it appears increasingly likely that this issue will become a recurring topic in Supreme Court jurisprudence in the coming years.

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