Cyber Security / Cyber Crime
Disini v. The Secretary of Justice
Closed Expands Expression
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The Supreme Court of the United States found a law in North Carolina to be in violation of the First Amendment because it made 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 case was taken by a registered sex offender who had been convicted under the law after publishing a Facebook post in 2010. The Supreme Court of the United States reached its decision because the law was overly broad and not narrowly tailored to further the government’s legitimate interest in preventing child abuse.
In 2008, North Carolina enacted General Statute 14-202.5 (Statute) which made 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.” According to the Statute, a “commercial social networking Web site” was defined as any site that: 1. generates revenue for the operator from sources related to the operation of the Web site; 2. facilitates social introductions between people for friendship, meeting others, or exchanging information; 3. allows users to create Web pages or personal profiles that contain information; and 4. provides mechanisms for users or visitors to communicate with each other.
In 2002, a 21 year-old man, Lester Gerard Packingham (Mr. Packingham), plead guilty to “taking indecent liberties with a child” after having sex with a 13-year-old girl. As a result of this crime, Mr. Packingham was required to register as a sex offender.
In 2010, a police officer in North Carolina was investigating potential violations of the Statute, and discovered posts made by Mr. Packingham on the social media site Facebook. The police subsequently arrested Mr. Packingham, and he was later convicted under the Statute. At trial, the court denied Mr. Packingham’s motion to dismiss the charges as a violation of the First Amendment.
The Court of Appeals of North Carolina struck down the Statute on appeal. However, this decision was later reversed by the North Carolina Supreme Court, which found the Statute to be constitutional. Mr. Packingham appealed to the United States Supreme Court, maintaining the argument that the Statute contravened the First Amendment.
Kennedy, J., delivered the opinion of the U.S. Supreme Court (Court).
The majority began by highlighting that the First Amendment protects people’s access to places where they can speak and listen. They went on to state that cyberspace had become the most important place for the exchange of views. In light of the constantly developing nature of the Internet, the Court concluded that it “must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks [on the Internet].” [p. 6]
The Court approached the case on the basis that the Statute was a content neutral restriction, and would therefore be subject to “intermediate scrutiny”. In order to survive such scrutiny, the Statute would have to be “narrowly tailored to serve a significant governmental interest.” This meant that the law limiting the speech must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” [p. 6, quoting McCullen]
The Court recognized that the Internet had become a means to commit criminal activity. In reaching its decision, the Court made two assumptions. First, that the Statute applied to social networking sites “as commonly understood”. [p. 7] The Court, therefore, did not need to decide on the precise scope of the Statute. Second, that the First Amendment permits the enactment of “specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.” [p. 7] Therefore, the Court’s judgment could not be read as barring States from enacting more specific laws than the one at issue in this case.
The Court concluded that even with these assumptions, the Statute enacted an over-broad provision that burdens huge swathes of First Amendment speech. The Court reasoned that “North Carolina with one broad stroke bars 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 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.’” [p. 8] The Court also indicated that access to some of the websites captured by the Statute could be beneficial for sex offenders seeking to reform and “pursue lawful and rewarding lives.” [p. 8]
Because North Carolina was unable to demonstrate to the Court why the breadth of the law was necessary to serve the purpose of protecting children from abuse, the Court reversed the decision of the North Carolina Supreme Court. The Court held that the Statute failed the test of intermediate scrutiny, and remanded the case for a ruling consistent with its judgment.
Alito, J. wrote a concurring opinion. Justice Alito agreed with the result in the case because of the law’s “extraordinary breadth,” but found a lot of the majority’s opinion to be “undisciplined dicta.” Alito J. was particularly alarmed by the majority drawing parallels between the Internet and physical spaces, which he believed were very different concepts. He reasoned that “if the entirety of the internet or even just ‘social media’ sites are the 21st century equivalent of public streets and parks, then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offenders.” [p. 10]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Packingham decision expands expression. This is one of the first U.S. Supreme Court cases to directly deal with the First Amendment and how it applies to the Internet. While protecting children is an important societal interest, the Court highlighted that laws restricting speech for this purpose would still need to be narrowly tailored so as not to capture protected speech on the Internet. In doing so, the Court firmly placed the use of social networking and other websites within the First Amendment protections.
The Court’s judgment strongly underlines the central role that the Internet plays in facilitating the exercise of the right to freedom of expression in modern societies. For instance, the Court stated that websites are “integral to the fabric of our modern society and culture” [p. 10] and “perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” [p. 8] While Packingham is a landmark U.S. case on free speech as it relates to the Internet, it will be interesting to see how lower courts apply it (particularly with regard to more narrowly drawn laws than the one at issue in the case).
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
United States Supreme Court cases are binding and mandatory authority on all lower courts in the United States.
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