Packingham v. North Carolina , 137 S. Ct. 1730 ( 2017 )

(Slip Opinion) OCTOBER TERM, 2016 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PACKINGHAM v. NORTH CAROLINA
CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA
No. 15–1194. Argued February 27, 2017—Decided June 19, 2017
North Carolina law makes it a felony for a registered sex offender “to
access a commercial social networking Web site where the sex offend-
er knows that the site permits minor children to become members or
to create or maintain personal Web pages.” N. C. Gen. Stat. Ann.
§§14–202.5(a), (e). According to sources cited to the Court, the State
has prosecuted over 1,000 people for violating this law, including pe-
titioner, who was indicted after posting a statement on his personal
Facebook profile about a positive experience in traffic court. The trial
court denied petitioner’s motion to dismiss the indictment on the
ground that the law violated the First Amendment. He was convict-
ed and given a suspended prison sentence. On appeal, the State
Court of Appeals struck down §14–202.5 on First Amendment
grounds, but the State Supreme Court reversed.
Held: The North Carolina statute impermissibly restricts lawful speech
in violation of the First Amendment. Pp. 4–10.
(a) A fundamental First Amendment principle is that all persons
have access to places where they can speak and listen, and then, af-
ter reflection, speak and listen once more. Today, one of the most
important places to exchange views is cyberspace, particularly social
media, which offers “relatively unlimited, low-cost capacity for com-
munication of all kinds,” Reno v. American Civil Liberties Union, 521
U.S. 844, 870, to users engaged in a wide array of protected First
Amendment activity on any number of diverse topics. The Internet’s
forces and directions are so new, so protean, and so far reaching that
courts must be conscious that what they say today may be obsolete
tomorrow. Here, in one of the first cases the Court has taken to ad-
dress the relationship between the First Amendment and the modern
Internet, the Court must exercise extreme caution before suggesting
that the First Amendment provides scant protection for access to vast
2 PACKINGHAM v. NORTH CAROLINA
Syllabus
networks in that medium. Pp. 4–6.
(b) This background informs the analysis of the statute at issue.
Even assuming that the statute is content neutral and thus subject to
intermediate scrutiny, the provision is not “ ‘ “narrowly tailored to
serve a significant governmental interest.” ’ ” McCullen v. Coakley,
573 U. S. ___, ___. Like other inventions heralded as advances in
human progress, the Internet and social media will be exploited by
the criminal mind. It is also clear that “sexual abuse of a child is a
most serious crime and an act repugnant to the moral instincts of a
decent people,” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244,
and that a legislature “may pass valid laws to protect children” and
other sexual assault victims, id., at 245. However, the assertion of a
valid governmental interest “cannot, in every context, be insulated
from all constitutional protections.” Stanley v. Georgia, 394 U.S.
557, 563.
Two assumptions are made in resolving this case. First, while the
Court need not decide the statute’s precise scope, it is enough to as-
sume that the law applies to commonplace social networking sites
like Facebook, LinkedIn, and Twitter. Second, the Court assumes
that the First Amendment permits a State to enact specific, narrow-
ly-tailored laws that prohibit a sex offender from engaging in conduct
that often presages a sexual crime, like contacting a minor or using a
website to gather information about a minor.
Even with these assumptions, the statute here enacts a prohibition
unprecedented in the scope of First Amendment speech it burdens.
Social media allows users to gain access to information and com-
municate with one another on any subject that might come to mind.
With one broad stroke, North Carolina 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. Foreclosing access to social media altogether thus pre-
vents users from engaging in the legitimate exercise of First Amend-
ment rights. Even convicted criminals—and in some instances espe-
cially convicted criminals—might receive legitimate benefits from
these means for access to the world of ideas, particularly if they seek
to reform and to pursue lawful and rewarding lives. Pp. 6–8.
(c) The State has not met its burden to show that this sweeping law
is necessary or legitimate to serve its purpose of keeping convicted
sex offenders away from vulnerable victims. No case or holding of
this Court has approved of a statute as broad in its reach. The State
relies on Burson v. Freeman, 504 U.S. 191, but that case considered
a more limited restriction—prohibiting campaigning within 100 feet
of a polling place—in order to protect the fundamental right to vote.
Cite as: 582 U. S. ____ (2017) 3
Syllabus
The Court noted, moreover, that a larger buffer zone could “become
an impermissible burden” under the First Amendment. Id., at 210.
The better analogy is Board of Airport Comm’rs of Los Angeles v.
Jews for Jesus, Inc., 482 U.S. 569. If an ordinance prohibiting any
“First Amendment activities” at a single Los Angeles airport could be
struck down because it covered all manner of protected, nondisrup-
tive behavior, including “talking and reading, or the wearing of cam-
paign buttons or symbolic clothing,” id., at 571, 575, it follows with
even greater force that the State may not enact this complete bar to
the exercise of First Amendment rights on websites integral to the
fabric of modern society and culture. Pp. 9–10.
368 N. C. 380, 777 S.E.2d 738, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG,
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion
concurring in the judgment, in which ROBERTS, C. J., and THOMAS, J.,
joined. GORSUCH, J., took no part in the consideration or decision of the
case.
Cite as: 582 U. S. ____ (2017) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1194
_________________
LESTER GERARD PACKINGHAM, PETITIONER v.
NORTH CAROLINA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NORTH CAROLINA
[June 19, 2017]
JUSTICE KENNEDY delivered the opinion of the Court.
In 2008, North Carolina enacted a statute making it a
felony for a registered sex offender to gain access to a
number of websites, including commonplace social media
websites like Facebook and Twitter. The question pre-
sented is whether that law is permissible under the First
Amendment’s Free Speech Clause, applicable to the
States under the Due Process Clause of the Fourteenth
Amendment.
I
A
North Carolina law makes it a felony for a registered
sex offender “to access a commercial social networking
Web site where the sex offender knows that the site per-
mits minor children to become members or to create or
maintain personal Web pages.” N. C. Gen. Stat. Ann.
§§14–202.5(a), (e) (2015). A “commercial social network-
ing Web site” is defined as a website that meets four crite-
ria. First, it “[i]s operated by a person who derives reve-
nue from membership fees, advertising, or other sources
related to the operation of the Web site.” §14–202.5(b).
2 PACKINGHAM v. NORTH CAROLINA
Opinion of the Court
Second, it “[f]acilitates the social introduction between two
or more persons for the purposes of friendship, meeting
other persons, or information exchanges.” Ibid. Third, it
“[a]llows users to create Web pages or personal profiles
that contain information such as the name or nickname of
the user, photographs placed on the personal Web page by
the user, other personal information about the user, and
links to other personal Web pages on the commercial
social networking Web site of friends or associates of the
user that may be accessed by other users or visitors to the
Web site.” Ibid. And fourth, it “[p]rovides users or visitors
. . . mechanisms to communicate with other users, such as
a message board, chat room, electronic mail, or instant
messenger.” Ibid.
The statute includes two express exemptions. The
statutory bar does not extend to websites that “[p]rovid[e]
only one of the following discrete services: photo-sharing,
electronic mail, instant messenger, or chat room or mes-
sage board platform.” §14–202.5(c)(1). The law also does
not encompass websites that have as their “primary pur-
pose the facilitation of commercial transactions involving
goods or services between [their] members or visitors.”
§14–202.5(c)(2).
According to sources cited to the Court, §14–202.5 ap-
plies to about 20,000 people in North Carolina and the
State has prosecuted over 1,000 people for violating it.
Brief for Petitioner 6–8.
B
In 2002, petitioner Lester Gerard Packingham—then a
21-year-old college student—had sex with a 13-year-old
girl. He pleaded guilty to taking indecent liberties with a
child. Because this crime qualifies as “an offense against
a minor,” petitioner was required to register as a sex
offender—a status that can endure for 30 years or more.
See §14–208.6A; see §14–208.7(a). As a registered sex
Cite as: 582 U. S. ____ (2017) 3
Opinion of the Court
offender, petitioner was barred under §14–202.5 from
gaining access to commercial social networking sites.
In 2010, a state court dismissed a traffic ticket against
petitioner. In response, he logged on to Facebook.com and
posted the following statement on his personal profile:
“Man God is Good! How about I got so much favor
they dismissed the ticket before court even started?
No fine, no court cost, no nothing spent. . . . . .Praise
be to GOD, WOW! Thanks JESUS!” App. 136.
At the time, a member of the Durham Police Depart-
ment was investigating registered sex offenders who were
thought to be violating §14–202.5. The officer noticed that
a “ ‘J. R. Gerrard’ ” had posted the statement quoted above.
368 N. C. 380, 381, 777 S.E.2d 738, 742 (2015). By check-
ing court records, the officer discovered that a traffic
citation for petitioner had been dismissed around the time
of the post. Evidence obtained by search warrant con-
firmed the officer’s suspicions that petitioner was J. R.
Gerrard.
Petitioner was indicted by a grand jury for violating
§14–202.5. The trial court denied his motion to dismiss
the indictment on the grounds that the charge against him
violated the First Amendment. Petitioner was ultimately
convicted and given a suspended prison sentence. At no
point during trial or sentencing did the State allege that
petitioner contacted a minor—or committed any other
illicit act—on the Internet.
Petitioner appealed to the Court of Appeals of North
Carolina. That court struck down §14–202.5 on First
Amendment grounds, explaining that the law is not nar-
rowly tailored to serve the State’s legitimate interest in
protecting minors from sexual abuse. 229 N. C. App. 293,
304, 748 S.E.2d 146, 154 (2013). Rather, the law “arbi-
trarily burdens all registered sex offenders by preventing
a wide range of communication and expressive activity
4 PACKINGHAM v. NORTH CAROLINA
Opinion of the Court
unrelated to achieving its purported goal.” Ibid. The
North Carolina Supreme Court reversed, concluding that
the law is “constitutional in all respects.” 368 N. C., at
381, 777 S.E.2d, at 741. Among other things, the court
explained that the law is “carefully tailored . . . to prohibit
registered sex offenders from accessing only those Web
sites that allow them the opportunity to gather infor-
mation about minors.” Id., at 389, 777 S. E. 2d, at 747.
The court also held that the law leaves open adequate
alternative means of communication because it permits
petitioner to gain access to websites that the court be-
lieved perform the “same or similar” functions as social
media, such as the Paula Deen Network and the website
for the local NBC affiliate. Id., at 390, 777 S. E. 2d, at
747. Two justices dissented. They stated that the law
impermissibly “creates a criminal prohibition of alarming
breadth and extends well beyond the evils the State seeks
to combat.” Id., at 401, 777 S. E. 2d, at 754 (opinion of
Hudson, J.) (alteration, citation, and internal quotation
marks omitted).
The Court granted certiorari, 580 U. S. ___ (2016), and
now reverses.
II
A fundamental principle of the First Amendment is that
all persons have access to places where they can speak
and listen, and then, after reflection, speak and listen once
more. The Court has sought to protect the right to speak
in this spatial context. A basic rule, for example, is that a
street or a park is a quintessential forum for the exercise
of First Amendment rights. See Ward v. Rock Against
Racism, 491 U.S. 781, 796 (1989). Even in the modern
era, these places are still essential venues for public gath-
erings to celebrate some views, to protest others, or simply
to learn and inquire.
While in the past there may have been difficulty in
Cite as: 582 U. S. ____ (2017) 5
Opinion of the Court
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, Reno v. American Civil Liberties Union, 521
U.S. 844, 868 (1997), and social media in particular.
Seven in ten American adults use at least one Internet
social networking service. Brief for Electronic Frontier
Foundation et al. as Amici Curiae 5–6. One of the most
popular of these sites is Facebook, the site used by peti-
tioner leading to his conviction in this case. According to
sources cited to the Court in this case, Facebook has 1.79
billion active users. Id., at 6. This is about three times
the population of North America.
Social media offers “relatively unlimited, low-cost capac-
ity for communication of all kinds.” Reno, supra, at 870.
On Facebook, for example, users can debate religion and
politics with their friends and neighbors or share vacation
photos. On LinkedIn, users can look for work, advertise
for employees, or review tips on entrepreneurship. And on
Twitter, users can petition their elected representatives
and otherwise engage with them in a direct manner.
Indeed, Governors in all 50 States and almost every Mem-
ber of Congress have set up accounts for this purpose. See
Brief for Electronic Frontier Foundation 15–16. In short,
social media users employ these websites to engage in a
wide array of protected First Amendment activity on
topics “as diverse as human thought.” Reno, supra, at 870
(internal quotation marks omitted).
The nature of a revolution in thought can be that, in its
early stages, even its participants may be unaware of it.
And when awareness comes, they still may be unable to
know or foresee where its changes lead. Cf. D. Hawke,
Benjamin Rush: Revolutionary Gadfly 341 (1971) (quoting
Rush as observing: “ ‘The American war is over; but this is
far from being the case with the American revolution. On
the contrary, nothing but the first act of the great drama
6 PACKINGHAM v. NORTH CAROLINA
Opinion of the Court
is closed’ ”). So too here. While we now may be coming to
the realization that the Cyber Age is a revolution of historic
proportions, we cannot appreciate yet its full dimensions
and vast potential to alter how we think, express our-
selves, and define who we want to be. The forces and
directions of the Internet are so new, so protean, and so
far reaching that courts must be conscious that what they
say today might be obsolete tomorrow.
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.
III
This background informs the analysis of the North
Carolina statute at issue. Even making the assumption
that the statute is content neutral and thus subject to
intermediate scrutiny, the provision cannot stand. In
order to survive intermediate scrutiny, a law must be
“narrowly tailored to serve a significant governmental
interest.” McCullen v. Coakley, 573 U. S. ___, ___ (2014)
(slip op., at 18) (internal quotation marks omitted). In
other words, the law must not “burden substantially more
speech than is necessary to further the government’s
legitimate interests.” Id., at ___ (slip op., at 19) (internal
quotation marks omitted).
For centuries now, inventions heralded as advances in
human progress have been exploited by the criminal mind.
New technologies, all too soon, can become instruments
used to commit serious crimes. The railroad is one exam-
ple, see M. Crichton, The Great Train Robbery, p. xv
(1975), and the telephone another, see 18 U.S. C. §1343.
So it will be with the Internet and social media.
There is also no doubt that, as this Court has recog-
Cite as: 582 U. S. ____ (2017) 7
Opinion of the Court
nized, “[t]he sexual abuse of a child is a most serious crime
and an act repugnant to the moral instincts of a decent
people.” Ashcroft v. Free Speech Coalition, 535 U.S. 234,
244 (2002). And it is clear that a legislature “may pass
valid laws to protect children” and other victims of sexual
assault “from abuse.” See id., at 245; accord, New York v.
Ferber, 458 U.S. 747, 757 (1982). The government, of
course, need not simply stand by and allow these evils to
occur. But the assertion of a valid governmental interest
“cannot, in every context, be insulated from all constitu-
tional protections.” Stanley v. Georgia, 394 U.S. 557, 563
(1969).
It is necessary to make two assumptions to resolve this
case. First, given the broad wording of the North Carolina
statute at issue, it might well bar access not only to com-
monplace social media websites but also to websites
as varied as Amazon.com, Washingtonpost.com, and
Webmd.com. See post, at 6–9; see also Brief for Electronic
Frontier Foundation 24–27; Brief for Cato Institute et al.
as Amici Curiae 10–12, and n. 6. The Court need not
decide the precise scope of the statute. It is enough to
assume that the law applies (as the State concedes it does)
to social networking sites “as commonly understood”—that
is, websites like Facebook, LinkedIn, and Twitter. See
Brief for Respondent 54; Tr. of Oral Arg. 27.
Second, this opinion should not be interpreted as bar-
ring a State from enacting more specific laws than the one
at issue. Specific criminal acts are not protected speech
even if speech is the means for their commission. See
Brandenburg v. Ohio, 395 U.S. 444, 447–449 (1969) ( per
curiam). Though the issue is not before the Court, it can
be assumed that the First Amendment permits a State to
enact specific, narrowly tailored laws that prohibit a sex
offender from engaging in conduct that often presages a
sexual crime, like contacting a minor or using a website to
gather information about a minor. Cf. Brief for Respond-
8 PACKINGHAM v. NORTH CAROLINA
Opinion of the Court
ent 42–43. Specific laws of that type must be the State’s
first resort to ward off the serious harm that sexual crimes
inflict. (Of importance, the troubling fact that the law
imposes severe restrictions on persons who already have
served their sentence and are no longer subject to the
supervision of the criminal justice system is also not an
issue before the Court.)
Even with these assumptions about the scope of the law
and the State’s interest, the statute here enacts a prohibi-
tion unprecedented in the scope of First Amendment
speech it burdens. Social media allows users to gain
access to information and communicate with one another
about it on any subject that might come to mind. Supra,
at 5. By prohibiting sex offenders from using those web-
sites, North Carolina with one broad stroke bars access to
what for many are the principal sources for knowing cur-
rent events, checking ads for employment, speaking and
listening in the modern public square, and otherwise
exploring the vast realms of human thought and
knowledge. These websites can provide perhaps the most
powerful mechanisms available to a private citizen to
make his or her voice heard. They allow a person with an
Internet connection to “become a town crier with a voice
that resonates farther than it could from any soapbox.”
Reno, 521 U.S., at 870.
In sum, to foreclose access to social media altogether is
to prevent the user from engaging in the legitimate exer-
cise of First Amendment rights. It is unsettling to suggest
that only a limited set of websites can be used even by
persons who have completed their sentences. Even con-
victed criminals—and in some instances especially con-
victed criminals—might receive legitimate benefits from
these means for access to the world of ideas, in particular
if they seek to reform and to pursue lawful and rewarding
lives.
Cite as: 582 U. S. ____ (2017) 9
Opinion of the Court
IV
The primary response from the State is that the law
must be this broad to serve its preventative purpose of
keeping convicted sex offenders away from vulnerable
victims. The State has not, however, met its burden to
show that this sweeping law is necessary or legitimate to
serve that purpose. See McCullen, 573 U. S., at ___ (slip
op., at 28).
It is instructive that no case or holding of this Court has
approved of a statute as broad in its reach. The closest
analogy that the State has cited is Burson v. Freeman, 504
U.S. 191 (1992). There, the Court upheld a prohibition on
campaigning within 100 feet of a polling place. That case
gives little or no support to the State. The law in Burson
was a limited restriction that, in a context consistent with
constitutional tradition, was enacted to protect another
fundamental right—the right to vote. The restrictions
there were far less onerous than those the State seeks to
impose here. The law in Burson meant only that the last
few seconds before voters entered a polling place were
“their own, as free from interference as possible.” Id., at
210. And the Court noted that, were the buffer zone larger
than 100 feet, it “could effectively become an impermissi-
ble burden” under the First Amendment. Ibid.
The better analogy to this case is Board of Airport
Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S.
569 (1987), where the Court struck down an ordinance
prohibiting any “First Amendment activities” at Los Ange-
les International Airport because the ordinance covered all
manner of protected, nondisruptive behavior including
“talking and reading, or the wearing of campaign buttons
or symbolic clothing,” id., at 571, 575. If a law prohibiting
“all protected expression” at a single airport is not consti-
tutional, id., at 574 (emphasis deleted), it follows with
even greater force that the State may not enact this com-
plete bar to the exercise of First Amendment rights on
10 PACKINGHAM v. NORTH CAROLINA
Opinion of the Court
websites integral to the fabric of our modern society and
culture.
* * *
It is well established that, as a general rule, the Gov-
ernment “may not suppress lawful speech as the means to
suppress unlawful speech.” Ashcroft v. Free Speech Coali-
tion, 535 U.S., at 255. That is what North Carolina has
done here. Its law must be held invalid.
The judgment of the North Carolina Supreme Court is
reversed, and the case is remanded for further proceedings
not inconsistent with this opinion.
It is so ordered.
JUSTICE GORSUCH took no part in the consideration or
decision of this case.
Cite as: 582 U. S. ____ (2017) 1
ALITO,Opinion of the in
J., concurring Court
judgment
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1194
_________________
LESTER GERARD PACKINGHAM, PETITIONER v.
NORTH CAROLINA
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NORTH CAROLINA
[June 19, 2017]
JUSTICE ALITO, with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join, concurring in the judgment.
The North Carolina statute at issue in this case was
enacted to serve an interest of “surpassing importance.”
New York v. Ferber, 458 U.S. 747, 757 (1982)—but it has
a staggering reach. It makes it a felony for a registered
sex offender simply to visit a vast array of websites, in-
cluding many that appear to provide no realistic oppor-
tunity for communications that could facilitate the abuse
of children. Because of the law’s extraordinary breadth, I
agree with the Court that it violates the Free Speech
Clause of the First Amendment.
I cannot join the opinion of the Court, however, because
of its undisciplined dicta. The Court is unable to resist
musings that seem to equate the entirety of the internet
with public streets and parks. Ante, at 4–5. And 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 prob-
2 PACKINGHAM v. NORTH CAROLINA
ALITO, J., concurring in judgment
lems with their peers. I am troubled by the implications of
the Court’s unnecessary rhetoric.
I
A
The North Carolina law at issue makes 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.” N. C. Gen. Stat.
Ann. §§14–202.5(a), (e) (2015). And as I will explain, the
statutory definition of a “commercial social networking
Web site” is very broad.
Packingham and the State debate the analytical frame-
work that governs this case. The State argues that the
law in question is content neutral and merely regulates a
“place” (i.e., the internet) where convicted sex offenders
may wish to engage in speech. See Brief for Respondent
20–25. Therefore, according to the State, the standard
applicable to “time, place, or manner” restrictions should
apply. See Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989). Packingham responds that the challenged
statute is “unlike any law this Court has considered as a
time, place, or manner restriction,” Brief for Petitioner 37,
and he advocates a more demanding standard of review,
id., at 37–39.
Like the Court, I find it unnecessary to resolve this
dispute because the law in question cannot satisfy the
standard applicable to a content-neutral regulation of the
place where speech may occur.
B
A content-neutral “time, place, or manner” restriction
must serve a “legitimate” government interest, Ward,
supra, at 798, and the North Carolina law easily satisfies
this requirement. As we have frequently noted, “[t]he
Cite as: 582 U. S. ____ (2017) 3
ALITO, J., concurring in judgment
prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing im-
portance.” Ferber, supra, at 757. “Sex offenders are a
serious threat,” and “the victims of sexual assault are
most often juveniles.” McKune v. Lile, 536 U.S. 24, 32
(2002) (plurality opinion); see Connecticut Dept. of Public
Safety v. Doe, 538 U.S. 1, 4 (2003). “[T]he . . . interest [of ]
safeguarding the physical and psychological well-being of
a minor . . . is a compelling one,” Globe Newspaper Co. v.
Superior Court, County of Norfolk, 457 U.S. 596, 607
(1982), and “we have sustained legislation aimed at pro-
tecting the physical and emotional well-being of youth
even when the laws have operated in the sensitive area of
constitutionally protected rights,” Ferber, supra, at 757.
Repeat sex offenders pose an especially grave risk to
children. “When convicted sex offenders reenter society,
they are much more likely than any other type of offender
to be rearrested for a new rape or sexual assault.”
McKune, supra, at 33 (plurality opinion); see United States
v. Kebodeaux, 570 U. S. ___, ___–___ (2013) (slip op.,
at 8–9).
The State’s interest in protecting children from recidi-
vist sex offenders plainly applies to internet use. Several
factors make the internet a powerful tool for the would-be
child abuser. First, children often use the internet in a
way that gives offenders easy access to their personal
information—by, for example, communicating with
strangers and allowing sites to disclose their location.1
Second, the internet provides previously unavailable ways
——————
1 See Pew Research Center, Teens, Social Media, and Privacy 5
(May 21, 2013), http://www.pewinternet.org/files/2013/05/PIP_
TeensSocialMediaandPrivacy_PDF.pdf (all internet materials as last
visited June 16, 2017); J. Wolak, K. Mitchell, & D. Finkelhor, National
Center for Missing & Exploited Children, Online Victimization of Youth:
Five Years Later 7 (2006) (prepared by Univ. of N. H., Crimes Against
Children Research Center), http://www.unh.edu/ccrc/pdf/CV138.pdf.
4 PACKINGHAM v. NORTH CAROLINA
ALITO, J., concurring in judgment
of communicating with, stalking, and ultimately abusing
children. An abuser can create a false profile that misrep-
resents the abuser’s age and gender. The abuser can lure
the minor into engaging in sexual conversations, sending
explicit photos, or even meeting in person. And an abuser
can use a child’s location posts on the internet to deter-
mine the pattern of the child’s day-to-day activities—and
even the child’s location at a given moment. Such uses of
the internet are already well documented, both in re-
search2 and in reported decisions.3
Because protecting children from abuse is a compelling
state interest and sex offenders can (and do) use the inter-
net to engage in such abuse, it is legitimate and entirely
——————
2 See id., at 2–3; Wolak, Finkhor, Mitchell, & Ybarra, Online “Preda-
tors” and Their Victims, 63 Am. Psychologist 111, 112 (Feb.–Mar.
2008).
3 For example, in State v. Gallo, 275 Ore. App. 868, 869, 365 P.3d
1154, 1154–1155 (2015), a 32-year-old defendant posing as a 15-year-
old boy used a social networking site to contact and befriend a 16-year-
old autistic girl. “He then arranged to meet the victim, took her to a
park, and sexually abused her.” Ibid., 365 P.3d, at 1155. In United
States v. Steele, 664 Fed. Appx. 260, 261 (CA3 2016), the defendant
“began interacting with a minor [victim] on the gay social networking
cell phone application ‘Jack’d.’ ” He eventually met the 14-year-old
victim and sexually abused him. Ibid. Sadly, these cases are not
unique. See, e.g., Himko v. English, 2016 WL 7645584, *1 (ND Fla.,
Dec. 5, 2016) (a convicted rapist and registered sex offender “contacted
a sixteen-year-old girl using . . . Facebook” and then exchanged explicit
text messages and photographs with her), report and recommendation
adopted, 2017 WL 54246 (Jan. 4, 2017); Roberts v. United States, 2015
WL 7424858, *2–*3 (SD Ohio, Nov. 23, 2015) (the defendant “met a
then 14-year-old child online via a social networking website called
vampirefreaks.com” and then enticed the child to his home and “coerced
the child to perform oral sex on him”), report and recommendation
adopted, 2016 WL 112647 (Jan. 8, 2016), certificate of appealability
denied, No. 16–3050 (CA6 June 15, 2016); State v. Murphy, 2016–0901,
p. 3 (La. App. 1 Cir. 10/28/16), 206 So. 3d 219, 224 (a defendant “initi-
ated conversations” with his 12-year-old victim “on a social network chat
site called ‘Kik’ ” and later sent sexually graphic photographs of himself
to the victim and received sexually graphic photos from her).
Cite as: 582 U. S. ____ (2017) 5
ALITO, J., concurring in judgment
reasonable for States to try to stop abuse from occurring
before it happens.
C
1
It is not enough, however, that the law before us is
designed to serve a compelling state interest; it also must
not “burden substantially more speech than is necessary
to further the government’s legitimate interests.” Ward,
491 U.S., at 798–799; see also McCullen v. Coakley, 573
U. S. ___, ___–___ (2014) (slip op., at 18–19). The North
Carolina law fails this requirement.
A straightforward reading of the text of N. C. Gen. Stat.
Ann. §14–202.5 compels the conclusion that it prohibits
sex offenders from accessing an enormous number of
websites. The law defines a “commercial social network-
ing Web site” as one with four characteristics. First, the
website must be “operated by a person who derives reve-
nue from membership fees, advertising, or other sources
related to the operation of the Web site.” §14–202.5(b)(1).
Due to the prevalence of advertising on websites of all
types, this requirement does little to limit the statute’s
reach.
Second, the website must “[f]acilitat[e] the social intro-
duction between two or more persons for the purposes of
friendship, meeting other persons, or information ex-
changes.” §14–202.5(b)(2). The term “social introduction”
easily encompasses any casual exchange, and the term
“information exchanges” seems to apply to any site that
provides an opportunity for a visitor to post a statement or
comment that may be read by other visitors. Today, a
great many websites include this feature.
Third, a website must “[a]llo[w] users to create Web
pages or personal profiles that contain information such as
the name or nickname of the user, photographs placed on
the personal Web page by the user, other personal infor-
6 PACKINGHAM v. NORTH CAROLINA
ALITO, J., concurring in judgment
mation about the user, and links to other personal Web
pages on the commercial social networking Web site of
friends or associates of the user that may be accessed by
other users or visitors to the Web site.” §14–202.5(b)(3)
(emphasis added). This definition covers websites that
allow users to create anything that can be called a “per-
sonal profile,” i.e., a short description of the user.4 Con-
trary to the argument of the State, Brief for Respondent
26–27, everything that follows the phrase “such as” is an
illustration of features that a covered website or personal
profile may (but need not) include.
Fourth, in order to fit within the statute, a website must
“[p]rovid[e] users or visitors . . . mechanisms to communi-
cate with other users, such as a message board, chat room,
electronic mail, or instant messenger.” §14–202.5(b)(4)
(emphasis added). This requirement seems to demand no
more than that a website allow back-and-forth comments
between users. And since a comment function is undoubt-
edly a “mechanis[m] to communicate with other users,”
ibid., it appears to follow that any website with such a
function satisfies this requirement.
2
The fatal problem for §14–202.5 is that its wide sweep
precludes access to a large number of websites that are
most unlikely to facilitate the commission of a sex crime
against a child. A handful of examples illustrates this
point.
Take, for example, the popular retail website Ama-
zon.com, which allows minors to use its services5 and
——————
4 See New Oxford American Dictionary 1394 (3d ed. 2010); Webster’s
Third New International Dictionary 1811 (2002); 12 Oxford English
Dictionary 576 (2d ed. 1989).
5 See Amazon, Conditions of Use (June 21, 2016), https://www.amazon.
com / gp / help /customer/display.html/ref=help_search_1-2?ie=UTF8&
nodeId=201909000&qid=1490898710&sr=1-2.
Cite as: 582 U. S. ____ (2017) 7
ALITO, J., concurring in judgment
meets all four requirements of §14–202.5’s definition of a
commercial social networking website. First, as a seller of
products, Amazon unquestionably derives revenue from
the operation of its website. Second, the Amazon site
facilitates the social introduction of people for the purpose
of information exchanges. When someone purchases a
product on Amazon, the purchaser can review the product
and upload photographs, and other buyers can then re-
spond to the review.6 This information exchange about
products that Amazon sells undoubtedly fits within the
definition in §14–202.5. It is the equivalent of passengers
on a bus comparing notes about products they have pur-
chased. Third, Amazon allows a user to create a personal
profile, which is then associated with the product reviews
that the user uploads. Such a profile can contain an as-
sortment of information, including the user’s name, e-mail
address, and picture.7 And fourth, given its back-and-
forth comment function, Amazon satisfies the final statu-
tory requirement.8
Many news websites are also covered by this definition.
For example, the Washington Post’s website gives minors
access9 and satisfies the four elements that define a com-
——————
6 See Amazon, About Customer Reviews, https://www.amazon.com/
gp/help/customer/display.html/ref =hp_left_v4_sib?ie=UTF8&nodeId=
201967050; Amazon, About Public Activity, https://www.amazon.com/
gp/ help/ customer/ display.html / ref = hp_left_v4_sib?ie = UTF8&nodeId =
202076150.
7 See Amazon, About Your Profile, https://www.amazon.com/
gp/help/customer/display.html/ref =hp_left_v4_sib?ie=UTF8&nodeId=
202076210; Amazon, About Public Information, https://www.amazon.com/
gp/help/customer/display.html/ref =help_search_1-2?ie =UTF8&nodeId =
202076170&qid=1490835739&sr=1-2.
8 Amazon does not appear to fall within the statute’s exemption for
websites that have as their “primary purpose the facilitation of com-
mercial transactions involving goods or services between its members
or visitors.” §14–202.5(c)(2). Amazon’s primary purpose seems to be
the facilitation of commercial transactions between its users and itself.
9 See Washington Post, Terms of Service (July 1, 2014), https://www.
8 PACKINGHAM v. NORTH CAROLINA
ALITO, J., concurring in judgment
mercial social networking website. The website (1) derives
revenue from ads and (2) facilitates social introductions
for the purpose of information exchanges. Users of the
site can comment on articles, reply to other users’ com-
ments, and recommend another user’s comment.10 Users
can also (3) create personal profiles that include a name or
nickname and a photograph. The photograph and name
will then appear next to every comment the user leaves on
an article. Finally (4), the back-and-forth comment section
is a mechanism for users to communicate among them-
selves. The site thus falls within §14–202.5 and is accord-
ingly off limits for registered sex offenders in North
Carolina.
Or consider WebMD—a website that contains health-
related resources, from tools that help users find a doctor
to information on preventative care and the symptoms
associated with particular medical problems. WebMD,
too, allows children on the site.11 And it exhibits the four
hallmarks of a “commercial social networking” website. It
obtains revenue from advertisements.12 It facilitates
information exchanges—via message boards that allow
users to engage in public discussion of an assortment of
health issues.13 It allows users to create basic profile
——————
washingtonpost.com/terms-of-service/2011/11/18/gIQAldiYiN_story.html?
utm_term=.9be5851f95.
10 See Washington Post, Ad choices (Nov. 21, 2011), https://www.
washingtonpost.com/how-can-i-opt-out-of-online-advertising-cookies/2011/
11/18/gIQABECbiN_story.html?utm_term=3da1f56d67e7; Washington
Post, Privacy Policy (May 2, 2017), https://www.washingtonpost.com/
privacy-policy / 2011 / 11 / 18 / gIQASIiaiN _ story.html ? utm_term =
.8252a76f8df2.
11 See WebMD, Terms and Conditions of Use (Nov. 2, 2016), https://www.
webmd.com/about-webmd-policies/about-terms-and-conditions-of-use.
12 WebMD, Advertising Policy (June 9, 2016), http://www.webmd.com/
about-webmd-policies/about-advertising-policy.
13 WebMD, Message Board Overview (Sept. 22, 2016), http://www.
webmd.com/about-webmd-policies/about-community-overview.
Cite as: 582 U. S. ____ (2017) 9
ALITO, J., concurring in judgment
pages: Users can upload a picture and some basic infor-
mation about themselves, and other users can see their
aggregated comments and “likes.”14 WebMD also provides
message boards, which are specifically mentioned in the
statute as a “mechanis[m] to communicate with other
users.” N. C. Gen. Stat. Ann. §14–202.5(b)(4).
As these examples illustrate, the North Carolina law
has a very broad reach and covers websites that are ill
suited for use in stalking or abusing children. The focus of
the discussion on these sites—shopping, news, health—
does not provide a convenient jumping off point for conver-
sations that may lead to abuse. In addition, the social
exchanges facilitated by these websites occur in the open,
and this reduces the possibility of a child being secretly
lured into an abusive situation. These websites also give
sex offenders little opportunity to gather personal details
about a child; the information that can be listed in a pro-
file is limited, and the profiles are brief. What is more,
none of these websites make it easy to determine a child’s
precise location at a given moment. For example, they do
not permit photo streams (at most, a child could upload a
single profile photograph), and they do not include up-to-
the minute location services. Such websites would provide
essentially no aid to a would-be child abuser.
Placing this set of websites categorically off limits from
registered sex offenders prohibits them from receiving or
engaging in speech that the First Amendment protects
and does not appreciably advance the State’s goal of pro-
tecting children from recidivist sex offenders. I am there-
fore compelled to conclude that, while the law before us
addresses a critical problem, it sweeps far too broadly to
satisfy the demands of the Free Speech Clause.15
——————
14 See WebMD, Change Your Profile Settings (Feb. 19, 2014), http://
www.webmd.com/about-webmd-policies/profile.
15 I express no view on whether a law that does not reach the sort of
10 PACKINGHAM v. NORTH CAROLINA
ALITO, J., concurring in judgment
II
While I thus agree with the Court that the particular
law at issue in this case violates the First Amendment, I
am troubled by the Court’s loose rhetoric. After noting
that “a street or a park is a quintessential forum for the
exercise of First Amendment rights,” the Court states that
“cyberspace” and “social media in particular” are now “the
most important places (in a spatial sense) for the exchange
of views.” Ante, at 4–5. The Court declines to explain
what this means with respect to free speech law, and the
Court holds no more than that the North Carolina law
fails the test for content-neutral “time, place, and man-
ner” restrictions. But if the entirety of the internet or
even just “social media” sites16 are the 21st century equiv-
alent of public streets and parks, then States may have
little ability to restrict the sites that may be visited by
even the most dangerous sex offenders. May a State
preclude an adult previously convicted of molesting chil-
dren from visiting a dating site for teenagers? Or a site
where minors communicate with each other about per-
sonal problems? The Court should be more attentive to the
implications of its rhetoric for, contrary to the Court’s
suggestion, there are important differences between cy-
berspace and the physical world.
I will mention a few that are relevant to internet use by
sex offenders. First, it is easier for parents to monitor the
physical locations that their children visit and the indi-
viduals with whom they speak in person than it is to
monitor their internet use. Second, if a sex offender is
seen approaching children or loitering in a place fre-
——————
sites discussed above would satisfy the First Amendment. Until such a
law is before us, it is premature to address that question.
16 As the law at issue here shows, it is not easy to provide a precise
definition of a “social media” site, and the Court makes no effort to do
so. Thus, the scope of its dicta is obscure.
Cite as: 582 U. S. ____ (2017) 11
ALITO, J., concurring in judgment
quented by children, this conduct may be observed by
parents, teachers, or others. Third, the internet offers an
unprecedented degree of anonymity and easily permits a
would-be molester to assume a false identity.
The Court is correct that we should be cautious in apply-
ing our free speech precedents to the internet. Ante, at 6.
Cyberspace is different from the physical world, and if it is
true, as the Court believes, that “we cannot appreciate
yet” the “full dimensions and vast potential” of “the Cyber
Age,” ibid., we should proceed circumspectly, taking one
step at a time. It is regrettable that the Court has not
heeded its own admonition of caution.