Justices Cite Free Speech in Sex Offenders’ Web Use, Disparaging Trademarks

By Mark Walsh — June 19, 2017 5 min read
  • Save to favorites
  • Print

The U.S. Supreme Court on Monday issued two decisions on First Amendment free speech principles in contexts with potential significance for education.

In one, the court held that a North Carolina statute violated the U.S. Constitution in the way it barred convicted sex offenders from accessing social networking sites that allow minors to create accounts. In the other, the court held that a provision of a federal trademark statute that bars disparagement of persons runs afoul of the free speech clause.

In the internet case, Packingham v. North Carolina (No. 15-1194), the opinion for the court by Justice Anthony M. Kennedy said social media sites such as Facebook, Twitter, and LinkedIn were deserving of First Amendment protection.

“By prohibiting sex offenders from using those websites, 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,” Kennedy wrote for himself and four others.

He was quick to add that states could enact a more 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.”

Kennedy was at times metaphysical about the rise of the internet as a medium of communication.

“While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be,” he wrote. “The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.”

His opinion was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.

Justice Samuel A. Alito Jr., in an opinion concurring in the outcome that was joined by Chief Justice John G. Roberts Jr. and Clarence Thomas, said the North Carolina law was of “staggering reach,” but he was worried that Kennedy was “unable to resist musings that seem to equate the entirety of the internet with public streets and parks.”

“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,” Alito said. “May a state preclude an adult previously convicted of molesting children from visiting a dating site for teenagers? Or a site where minors communicate with each other about personal problems?”

He urged the court to proceed with caution in this area.

While “parents, teachers, or others” are able to observe when sex offenders approach children or loiter in physical places where children gather, Alito said, “the internet offers an unprecedented degree of anonymity and easily permits a would-be molester to assume a false identity.”

Justice Neil M. Gorsuch took no part in the case.

The case involved Lester Gerard Packingham, who was on North Carolina’s sex offender registry for a crime of taking liberties with a 13-year-old when in 2010 he ran afoul of the state’s law that prohibits those on the registry from accessing “commercial social networking Web sites.”

In 2010, Packingham took to Facebook to post a short message praising God after a court had dismissed a traffic citation against him. A Durham, N.C., police officer who was actively looking for sex-offender registry members who were participating in social media came across the post. The officer identified Packingham as the author of the post and charged him with violating the 2010 law. Packingham was convicted and sentenced to a suspended term of six to eight months, plus supervised probation.

Disparagement Case

The trademark case, Matal v. Tam (No. 15-1293), stemmed from an Asian-American dance-rock band’s efforts to trademark its name—The Slants—which the band intends as a way to reclaim an ethnic slur, but which federal officials view as not worthy of protection because it disparages people of Asian ancestry.

Native American groups filed briefs arguing that a long history of offensive Indian-related school and college nicknames and symbols shows that the provision of the Lanham Act of 1946 that bars protection for disparaging names is a permissible regulation of speech.

With Gorsuch not participating, all other eight members of the court agreed that the disparagement clause runs afoul of the First Amendment, but they disagreed on their rationales.

Justice Alito wrote the main opinion, in parts for a majority and other parts a mere plurality, that rejected the federal government’s rationales for sustaining the disparagement clause.

Referring to a friend-of-the-court brief filed in support of the government filed by Native American groups, Alito said the brief mentions “encouraging tolerance and protecting the privacy and welfare of individuals.” But, Alito said, “no matter how the point is phrased, its unmistakable thrust is this: The government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment.”

“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful,” Alito said in a plularity part of his opinion. “But the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

The last phrase comes from a 1929 opinion by Justice Oliver Wendell Holmes in United States v. Schwimmer.

While both cases are at least a couple of steps removed from school contexts, the Supreme Court’s First Amendment decisions from any circumstances often find their way into education.

During oral arguments in the North Carolina case in February, the justices seemed to be trying to balance free speech concerns with worries about social media dangers to children. Justice Sonia Sotomayor asked the state lawyer defending the law whether the measure would bar sex offenders from the website of a school. (The lawyer said it wouldn’t.)

In the Tam case, Justice Alito analyzed the federal government’s defenses of the bar on disparaging trademarks under several of the high court’s school speech decisions. He noted that “even in such cases, what we have termed ‘viewpoint discrimination’ is forbidden.”

“The disparagement clause cannot be saved by analyzing it as a type of government program in which some content- and speaker-based restrictions are permitted,” Alito said. “Giving offense is a viewpoint.”

A version of this news article first appeared in The School Law Blog.