Shari Lewis - Rivkin Radler.12/13/2016
Shari Lewis – Rivkin Radler.12/13/2016 (Jim Lennon)

It is a truism that law often lags technology. Near the end of the U.S. Supreme Court’s past term, the court issued a decision in which the majority opinion, by Justice Anthony Kennedy, recognized the importance of social media in most people’s lives. The ramifications of the court’s statements about social media, in Packingham v. North Carolina, __ U.S. __, 137 S. Ct. 1730, 198 L. Ed. 2d 273 (June 19, 2017), already are reverberating in New York courts.

‘Packingham’

In 2008, North Carolina enacted a statute making 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.” The law as enacted covered commonplace social media websites such as Facebook and Twitter.

After the North Carolina law took effect, a state court dismissed a traffic ticket against Lester Gerard Packingham, a registered sex offender. In response, he logged on to Facebook 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!”

Based on this post, Packingham was convicted for violating the North Carolina law and given a suspended prison sentence. He appealed, and the North Carolina court of appeals struck down the law on First Amendment grounds, explaining that the law “arbitrarily” burdened all registered sex offenders “by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal.”

The North Carolina Supreme Court reversed, concluding that the law was “constitutional in all respects.” Among other things, the court explained that the law was “carefully tailored … to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information about minors.” The court also held that the law left open adequate alternative means of communication because it permitted Packingham to gain access to websites that the court believed performed the “same or similar” functions as social media, pointing to, as examples, the Paula Deen Network and the website for the local NBC affiliate.

The U.S. Supreme Court granted certiorari, and reversed.

The Supreme Court’s Decision

The court’s decision depends on the fundamental principle of the First Amendment that all persons are entitled to access to places where they can speak and listen, and then, after reflection, speak and listen some more. The court observed that a street or a park is a “quintessential forum for the exercise of First Amendment rights,” which are “still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.”

The court continued that although there may have been difficulty in the past identifying the most important places 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.”

The court pointed out that seven in 10 American adults use at least one Internet social networking service, and that one of the most popular of these sites is Facebook—the site Packingham used, which led to his conviction. The court was impressed that “Facebook has 1.79 billion active users,” which it observed is about three times the population of North America.

The court also noted that social media offers “relatively unlimited, low-cost capacity for communication of all kinds,” adding that users can debate religion and politics with their friends and neighbors or share vacation photos on Facebook; look for work, advertise for employees, or review tips on entrepreneurship on LinkedIn; and petition their elected representatives and otherwise engage with them in a direct manner on Twitter. The court observed that governors in all 50 states and almost every member of Congress have set up accounts for this purpose. The court added that social media users employ these websites “to engage in a wide array of protected First Amendment activity” on topics “as diverse as human thought.”

The court then conceded that although we might be coming to the realization that the Cyber Age “is a revolution of historic proportions,” we cannot yet appreciate its “full dimensions and vast potential to alter how we think, express ourselves, 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.”

Given all the court said about social media, it is perhaps not surprising that it then found that the North Carolina law—even assuming that it was content neutral and thus subject to intermediate scrutiny—could not stand. The court reasoned that, given the “broad wording” of the North Carolina law, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com. Significantly, however, the court stated that it did not even have to decide that the law blocked access to those sites, stating that it was enough to assume that the law applies (as the state conceded it does) to social networking sites “as commonly understood”—that is, websites such as Facebook, LinkedIn, and Twitter.

The court concluded by stating that social media “allows users to gain access to information and communicate with one another about it on any subject that might come to mind.” It then held that the North Carolina law was unconstitutional, because “with one broad stroke,” it barred 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.” These websites, the court concluded, “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.” Foreclosing access to social media altogether was “to prevent the user from engaging in the legitimate exercise of First Amendment rights,” the court concluded.

It should be noted that Justice Neil Gorsuch took no part in the consideration or decision of the case—and that Justice Samuel Alito concurred in the judgment in an opinion joined by Chief Justice John Roberts and Justice Clarence Thomas. Justice Alito’s concurring opinion criticized what he characterized as the majority opinion’s “undisciplined dicta” and “loose rhetoric,” adding that the court was “unable to resist musings that seem to equate the entirety of the internet with public streets and parks.”

Whether or not the majority’s statements about social media amounted to “undisciplined dicta” or “loose rhetoric,” as Justice Alito suggested, they already have reached the attention of many.

An ADA Case

Consider, for example, the recent decision by Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York, in Andrews v. Blick Art Materials, No. 17-CV-767 (E.D.N.Y. Aug. 7, 2017).

Judge Weinstein began his decision by explaining that the question in the case was “whether a large retail store chain with an online presence must ensure that its website is accessible to the visually impaired.” He then quoted from the majority opinion in Packingham, noting that, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”

Judge Weinstein denied the defendant’s motion to dismiss the complaint, concluding that the plaintiff, who is legally blind, has a substantive right to obtain effective access to the store’s website to make purchases, learn about products, and enjoy the other goods, services, accommodations, and privileges its website provides to the general public. It will be interesting to see if Packingham is quoted in future decisions issued by Judge Weinstein in this case.

Complaint Against the President

The court’s statements in Packingham play a large role in a complaint filed last month in the U.S. District Court of the Southern District of New York against President Trump by Twitter users who had criticized President Trump or his policies and who had been blocked by his @realDonaldTrump Twitter account. Knight First Amendment Institute at Columbia University v. Trump, No. ___ (S.D.N.Y.).

The Knight complaint cited the majority opinion’s statements in Packingham that social media platforms such as Facebook and Twitter provide “perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard” and that these platforms have been “revolution[ary],” not least because they have transformed civic engagement by allowing elected officials to communicate instantaneously and directly with their constituents. The complaint also reiterated the Packingham court’s comment that governors in all 50 states and almost every member of Congress “have set up [Twitter] accounts” that allow citizens to “petition their elected representatives and otherwise engage with them in a direct manner.”

The complaint alleged that the president’s tweets from @realDonaldTrump have been treated as official communications by the president, and that the account has become an important source of news and information about the government, and an important public forum for speech by, to, and about the president. Accordingly, the complaint seeks a court order prohibiting the practice of blocking Twitter users who have criticized the president or his policies from having access to the @realDonaldTrump account. The individual plaintiffs contend that being blocked from the @realDonaldTrump account prevents or impedes them from viewing the president’s tweets, from replying to these tweets, from viewing the comment threads associated with these tweets, and from participating in the comment threads.

At this stage, of course, it remains to be seen whether the Knight action will be permitted to proceed, but it is yet another example of the ubiquity of social media, and the importance so many of us now place on it in our daily lives, as the U.S. Supreme Court has recognized.