The U.S. Supreme Court, in Packingham v. South Carolina, unanimously struck down a state law that banned registered sex offenders (RSOs) from using all Internet social media, holding that the law violated the First Amendment.
EFF and our allies Public Knowledge and the Center for Democracy & Technology filed an amicus brief urging this result. The Court cited our brief for three propositions regarding the extraordinary consequences of banishing people from all Internet social media:
- Seven in ten American adults use at least one Internet social networking service.
- One of them, Facebook, has 1.79 billion active users.
- All Governors and nearly all members of Congress use social media to communicate with their constituents.
The Court also cited our brief for the proposition that the broadly worded law might bar access not just to commonplace social media websites, but also to other websites like Amazon.com, Washingtonpost.com, and Webmd.com. Our brief was written by Professor David Post, as well as Jonathan Sherman, Perry M. Grossman, and Henry Bluestone Smith of Boies, Schiller & Flexner LLP.
Both Justice Kennedy’s majority opinion and Justice Alito’s concurrence in the judgment assumed without deciding that the law was content neutral, and thus applied the intermediate scrutiny test used for content neutral laws. Both opinions therefore required the government to prove that the law was narrowly tailored, meaning the law does not burden substantially more speech than necessary to achieve the government’s goal of protecting children. Both concluded that the law failed this test, because it banished RSOs from all Internet social media.
Several statements from the Court’s opinion (which Justice Alito’s opinion did not join) will be critical in deciding all manner of future cases applying the First Amendment to the Internet:
- “Cyberspace . . . in general” and “social media in particular” are “the most important places (in a spatial sense) for the exchange of views.”
- Internet social media “can provide perhaps the most powerful mechanism available to a private citizen to make his or her voice heard.”
- “Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits form these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.”
In addition to opposing the banishment of RSOs from all Internet social media, EFF also has long opposed government efforts to strip RSOs of their right to anonymous speech on the Internet, and efforts to force RSOs to wear location-tracking shackles every moment for the rest of their lives.
EFF opposes laws like these that burden the digital liberties of RSOs for three reasons. First, digital liberty is a fundamental human right that all people should enjoy. Second, government often imposes new technological burdens on “the worst of the worst,” and then expands those burdens to other populations. Third, the government has designated nearly one million people as RSOs, including many non-dangerous people.
The Court’s decision in Packingham strengthens the First Amendment rights of all people to participate in the Internet.