- The Washington Times - Monday, June 19, 2017

The Supreme Court raised the prospects of a constitutional right to social media, ruling Monday that a convicted sex offender can’t be barred from surfing the web because of general fears he’ll be enticed into illicit activity.

The justices said the internet is the modern equivalent of parks or streets, where political discussions raged under the protections of the First Amendment, and said governments need to tread carefully when trying to cut off someone’s access.

They struck down a North Carolina law that had prohibited sex offender from logging onto social media, saying that such a broad ban would be cutting someone off from what has become the most robust forum for politics, free speech and commercial activity.

Justice Anthony M. Kennedy, writing the majority opinion, equated today’s internet to community parks, where he said the First Amendment has long reigned.

“Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind,” he wrote. “By prohibiting sex offenders from using those websites, North Carolina with one broad stroke 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.”

All eight of the justices who took part in the case agreed with the ruling that North Carolina’s law was unconstitutional. But Justice Samuel A. Alito Jr., in a concurring opinion joined by two other justices, seemed shocked by how far Justice Kennedy was willing to go, calling the majority ruling “undisciplined dicta.”

“The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks,” he wrote, warning of unintended consequences.

“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 problems with their peers,” Justice Alito said. “I am troubled by the implications of the Court’s unnecessary rhetoric.”

The case stemmed from 2002 incident in which a 21-year-old college student, Lester Gerard Packingham, had sex with a 13-year-old girl. He pleaded guilty to taking indecent liberties with a child, was required to register as a sex offender, and under North Carolina law was barred from accessing social media — ostensibly to keep him from contacting a minor.

In 2010, Mr. Packingham logged onto Facebook to cheer his good fortune in getting a traffic ticket dismissed.

A police officer spotted the post, connected it to Mr. Packingham, and he was convicted and given a suspended sentence.

At no time did police suggest his online activities included anything aimed at minors, according to the court.

Justice Kennedy said states could likely enact laws banning a convicted sex offender from online behavior that often presages a future crime, such as “contacting a minor or using a website to gather information about a minor.”

But he said a broader ban on online activity cannot be stomached.

He said social media sites — and Facebook in particular — have become the premier place for political conversations among Americans, and are also used for communications from elected officials to their constituents.

“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,” he wrote.

Adam Schwartz, a lawyer with the Electronic Frontier Foundation, which filed briefs in the case opposing the law, said all eight justices agreed that the government has a high burden of proof when it comes to restricting internet access.

“It’s a big win for the internet free speech rights of everyone,” he said.

Mr. Schwartz said the next test could come in cases involving registered sex offenders who post anonymously online. Some states have adopted rules requiring them to divulge all of their internet identities to police, and courts have split on whether those are legal.

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