UPDATE: SCOTUS grants cert; will hear NC Facebook case
By ROBIN VANDERWALL . . . The United States Supreme Court has accepted the petition for a writ of certiorari from Lester Gerard Packingham who was arrested in 2012 for posting a message on Facebook in violation of North Carolina’s prohibition against sex offenders accessing social media websites. On petition to the U.S. Supreme Court since January 2016, the Packingham case was listed for conference four times. Packingham was previously decided by the N. C. Supreme Court in a 4-2 opinion where the majority held that prohibiting registered citizens from “accessing” social media networks permitting minors to create and maintain user profiles was constitutional in “all respects.”
Writing for the majority, Justice Robert H. “Bob” Edmunds reasoned that since the statute under review in Packingham concerned only conduct, and not speech, the impact to registered citizens’ First Amendment rights was merely incidental to the otherwise legitimate interest of the state in prohibiting such conduct. He further reasoned that there were already “ample alternative means” through which registered citizens could participate in expressive forums open and available to them. His reasoning was strained and tortured and his opinion was summarily dismembered by the dissent penned by Justice Robin E. Hudson.
For additional information and analyses of what’s at stake for the community of registered citizens throughout the entire nation, please read Eugene Volokh’s piece in the Washington Post. Prof. Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law and filed an Amicus Brief in support of the petition for Certiorari in the Packingham case.
There are a number of issues with Justice Edmunds’ reasoning. Foremost, there is an assumption of future “conduct” by the state with prohibitions against such being enacted in the present. What of those who have no intention of engaging in such conduct? Why should they too be subjected to such Draconian measures?
“It is better that ten guilty persons escape than that one innocent suffer” – Sir William Blackstone (1765)
Next, how can any reasonable person believe that limiting access to one channel of communication does not constitute an infringement of free speech simply because other avenues are available? Imagine for a moment if the state told reporters investigating corruption in government that they could no longer publish stories in the New York Times but were free to do so on Paula Deen’s blog?
Freedom of speech was not merely a right to speak your mind but to do so openly and publicly. We all have freedom of speech in the privacy of our own homes but what good does that do?
generally both sides of the aisle Dem or republican seem to agree most of the time when it comes to the registry. How ever if the case is well argued as using social media in these days is the same as using a telephone or writing a letter and that the ban is a very clear violation of the first amendment then hopefully they will override the state.
This is our chance! With a President Trump approve Supreme Court Judge this could be a positive turning point in SO registration. The Court will be more likely to adhere to the Constitution and maybe a good step or success in tackling this over burdening, ineffective, bordering on double-jeopardy registry requirement.
Susana…taking nothing away from your chosen candidate, I would remind you that Trump ran and was elected as a Republican (i.e. Conservative). If you look at states with the harshest SOR laws they have overwhelmingly Republican majorities. So it is tempting to think that Trump will appoint a true constitutionalist but even the SCOTUS bends to the will of political climate.