When “ample alternatives” are neither

By David Post . . . A couple of weeks ago, I joined 16 law professors in an amicus brief (authored by Eugene Volokh and several of his students) urging the Supreme Court to grant certiorari in the case of North Carolina v. Packingham. [Here’s Eugene’s posting about the brief.] The case, in a nutshell:

North Carolina bans registered sex offenders from using or accessing any social networking website that allows under-18-year-olds to post. This includes, of course, the vast bulk of the social networking universe – Facebook, Twitter, Instagram, LinkedIn, Reddit, along with many, many other such sites. The ban is not limited to people who are in prison or on probation or parole (whose First Amendment rights are sharply reduced because of that); it applies even to people who have finished serving their sentences, and who possess, at least in principle, the same First Amendment rights as you and I. Nor is the law limited to sex offenders who had committed crimes against minors (though I think that too would be unconstitutional). Rather, the law makes it a crime for any registered sex offender to either post to such a site or even read it, on the theory that the law is needed “to prevent registered sex offenders from prowling on social media and gathering information about potential child targets.”

There are, as Volokh succinctly put it in the earlier posting, “many First Amendment problems” with the N.C. court’s decision rejecting a challenge to the constitutionality of this prohibition.[**] The amicus brief, though, focused on only one of them: the court’s holding that the prohibition is a “reasonable” restriction on speech because it leaves “ample alternative channels” for the speech of persons covered by the ban. Maybe you can’t post (or even access any posts) on Facebook or Twitter or Instagram or Reddit [or NYTimes.com or the Volokh Conspiracy, for that matter, all of whom allow persons under the age of 18 to post/access) … but “the Web offers numerous alternatives that provide the same or similar services that defendant could access without violating” the statute.

It seems crazy to me — imagine trying to run for public office, or participate in someone else’s campaign for public office, or complain to your City Councilperson, or start a petition drive to get a new streetlight on your corner … without being able to access any of the major social networking sites. Not impossible, sure — but it seems quite far-fetched to suggest that there are “ample alternatives” out there on the Web for you to accomplish these tasks.

Fortunately, we have Supreme Court precedent on our side: City of Ladue v. Gilleo (1994), which invalidated a city ordinance banning homeowners from displaying signs on their property. The city argued that the ordinance left people “free to convey their desired messages by other means, such as hand-held signs, ‘letters, handbills, flyers, telephone calls, newspaper advertisements, bumper stickers, speeches, and neighborhood or community meetings.’” But these alternatives, the court held, were inadequate because they tended to convey a substantively different message, were not as cost-effective or failed to reach the speaker’s intended audience. (Please read David’s full post at Volokh Conspiracy of the Washington Post)

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