In Packingham v. North Carolina the Supreme Court ruled unanimously that a North Carolina law making it a felony for a registered sex offender to access social networking sites where minors can create profiles violates the First Amendment Free Speech Clause. The State and Local Legal Center (SLLC) filed an amicus brief arguing for the opposite result.
Lester Packingham was charged with violating the North Carolina statute because he praised God on Facebook when a parking ticket was dismissed.
This case may not see particularly relevant to local governments. But, if a statute (or ordinance) limits speech based on content, it is subject to strict (nearly always fatal) scrutiny. In Reed v. Town of Gilbert, Arizona (2015), the Supreme Court held that the definition of content-based is very broad.
The SLLC amicus brief argued, among other things, that the North Carolina law isn’t content-based, contrary to the opinion of a dissenting North Carolina Supreme Court judge. A conviction under the statute does not turn on the content of the speech; it turns on whether sex offenders have accessed websites where minors can maintain profiles.
The Supreme Court assumed the statute was content-neutral but held that it is too broad to withstand even less rigorous intermediate scrutiny. So, practically speaking, the Supreme Court didn’t expand or clarify the definition of content-based in Packingham. Continue reading