First amendment makes odd bedfellows

Thanks to our glorious First Amendment, we have probably the most beautiful free speech rights of any country in the world. No other nation permits as vigorous and open speech was we do.

However, as we have seen with Charlottesville and disputes about the placement of Confederate statutes, “free speech” is not always publicly popular. The American Civil Liberties Union (“ACLU”), has existed as an army of attorneys manning the stanchions buttressing our First Amendment. While it is true that the ACLU is often at the forefront of “progressive” litigation, such as protecting students’ rights or opposing alleged brutal police tactics, it has been wrongfully labeled as “leftie” organization and reviled by conservative activists.

Specifically, when the First Amendment is in play, the ACLU stands on the side of free speech, even if the speech is vile and reprehensible. In this sense, the ACLU is an “agnostic” organization with respect to the First Amendment angering, equally, liberals and conservatives in its advocacy for protecting citizens against government intrusion on the right to organize and speak.

We see the same thing happening when free speech cases wind their way to the United States Supreme Court; the distance between progressive and conservative justices melts. Some of the strongest legal defenses of the First Amendment have been written by some of our most conservative jurists. Still, as much as we might bask in the world’s praise for our freedom, there are clashes swirling around our First Amendment that does not always make for popular legal opinions.

This brings us to a Supreme Court opinion from earlier this summer styled as Packingham v. North Carolina. The tension presented to the Justices was a law designed to protect innocents from convicted sexual offenders and, yes, our First Amendment. One of the consequences of being convicted of a sexual offense is that, in most states, offenders are saddled with a host of restrictions from where they can live and work to access to social media.

These laws are blunt. Someone convicted of statutory rape (say, having a sexual relationship with a 15 year-old), a person not necessarily a “predator,” is treated the same as a man who has molested children as young as 6 years old. These offenders are in completely different leagues, although treated the same on a sex offender list.

Courts asked to look at these restrictions often slap legislatures back for having overreached in interfering with a felon’s reasonable right to live his or her life. This is what happened in North Carolina.

The statute at issue barred a registered sex offender access to common web-based social media website. Thus, a sex offender commits a felony for going to 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. State. Ann. §§14-202.5(a), (e) 2015. The term “commercial social networking Web site” is further defined to broadly encompass Facebook, Twitter, Instagram, etc., and just about any such site involving some form of imaginable communication. Exceptions were carved out for websites with a primary commercial purpose (think Amazon) and sites offering only one discrete service (think email or a chat room).

Certainly, the North Carolina Legislature was acting in a responsible manner to be concerned about predators lurking on the Web where minors congregate, a “virtual” school or park playground. The question for the Supreme Court was whether or not these restrictions violated the First Amendment.

Lester Gerard Packingham’s illegal sexual acts bordered on being a sexual predator; he had some sort of sexual contact with a 13-year-old girl, where he was a 21-year-old college student. Typically, a “sexual predator” is defined as someone who sexually assaults victims, e.g., a serial rapist, OR abuses pre-pubescent children. Here, a 13-year-old is not quite a pre-pubescent child but not yet an older teenager. Regardless, his acts caused him to have to register as a sex offender.

After being convicted, Mr. Packingham was arrested and had a traffic ticket dismissed against him. He went on Facebook and posted a personal comment on his personal page concerning his exoneration. This post was discovered by local law enforcement, and Mr. Packingham was charged with violating North Carolina’s website statute. He was ultimately convicted, and his appeals ended up at the Supreme Court.

Justice Kennedy authored this rare unanimous opinion effectively killing this statute for violating Mr. Packingham’s First Amendment rights. The core of his analysis is that the webspace is a revolution of public expression and has become a public space as necessary for free speech as the courthouse steps. Thus, North Carolina’s bar was over broad and denied Mr. Packingham access to core speech rights for a citizen, even if the intent was to pre-empt illegal activity (contacting minors).

While the concurring opinion authored by Justice Samuel Alito, on behalf of the “conservative” wing of the Supreme Court, agreed with the result, it paid homage to the statute as “enacted to serve an interest of ‘surpassing importance.’” With this in mind, Justice Alito felt that Justice Kennedy’s opinion went too far in prose. This does not take away from the unanimity of the judgment and the fact that a social good (protecting our children from evil adults) was outweighed by free speech rights. Hence, another instance where politics were shed to honor our First Amendment.

This result favored First Amendment rights over a government’s power to restrict speech. This unanimous opinion, albeit with a concurring opinion concerned about scope, defended free speech rights, as written by a “conservative” justice joined by conservative justices. Yet another example how speech trumps government.

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