Packingham v North Carolina: A Constitutional Right to Social Media?
Edoardo Celeste is PhD candidate at the Sutherland School of Law, University College Dublin (UCD). In January 2018 he joined the Alexander von Humboldt Institute for Internet and Society (Berlin) as a Fellow in the research area ‘Global Constitutionalism’. His PhD thesis investigates the concept of digital constitutionalism, and in particular it analyses the role of the Internet bills of rights in the process of constitutionalisation of the Internet. He started this research during his LLM at King’s College London: his dissertation ‘Identikit for an Internet Constitution’ won the Dickson Poon Prize for the Best Dissertation in IP and Information Law. In 2017 he was awarded the Irish Research Council Government of Ireland Postgraduate Scholarship. Edoardo holds a law degree and a master of specialisation from the University of Rome ‘La Sapienza', a master in EU law from the University of Paris II, and an LLM from King’s College London. He worked for the ERC-funded Horizon 2020 research project ‘Effective Nature Laws’, and he was visiting researcher at the Nexa Center for Internet and Society (Polytechnic University of Turin). Edoardo is a member of the editorial board of the UCD Law Review, and tutor of EU constitutional and economic law at UCD Sutherland School of Law. He is currently affiliated with the UCD Centre for Human Rights, and an associate member of the doctoral programme EPEDER (Humboldt-Universität zu Berlin).
The fully referenced version is available here.
Dear Editor,
In North Carolina, a statute prevented registered sex-offenders who committed abuses on minors to use social media after their conviction. On 19th June 2017, in the case Packingham v North Carolina, the US Supreme Court unanimously held that this statute was unconstitutional. The key argument of the court was to identify social networking websites as ‘places where [all citizens] can speak and listen, and then, after reflection, speak and listen once more.’ Even if the protection of minors was considered a valid governmental interest, the ‘unprecedented’ restriction of the scope of First Amendment speech engendered by the prohibition of the use of social media was deemed unacceptable.
As stated by Justice Kennedy, who wrote the opinion of the majority, ‘this case is one of the first [the] court has taken to address the relationship between the First Amendment and the modern Internet.’ Interestingly, this decision occurred exactly twenty years after the well-known judgment in Reno v American Civil Liberties Union. In Reno, the Supreme Court ruled for the first time on the constitutionality of a federal statute limiting free speech on the Internet. Two decades later, the Supreme Court not only affirmed – echoing Reno – that social media allow anyone with an Internet connection to become a modern ‘town crier’, but also that they represent ‘what for many are the principal sources for knowing current events’ as well as ‘the most powerful mechanisms available to a private citizen to make his or her voice heard.’
Can we consequently affirm, as some journalists did, that the Supreme Court recognised a constitutional right to use social media? This contribution will examine the veracity of this affirmation and will eventually reflect on the different approach that a European court would have taken in a similar case.
Firstly, it is possible to exclude that the Supreme Court affirmed a social right to use social media, or, in other words, a right to claim access to social media from the state. From a practical point of view, this would imply the right of citizens to claim a series of services from the state, such as the possibility to have an Internet connection, or to obtain the necessary hardware to access social media.
Secondly, it is also evident that the court did not impose on social media platforms any obligations to grant citizens access to their websites. By excluding this far reaching interpretation, it follows that the court did not craft any positive right to social media access. Indeed, a positive right to social media would mean that people should have the possibility to exchange information through these websites. However, such a positive right would necessarily imply both a social right to use social media, and an imposition of obligations on social media platforms, which are precisely the two options that have just been excluded.
The final option to consider is that the court upheld a negative right protecting citizens from potential restrictions on their possibility to access and use social media. This interpretation best fits the words of the Supreme Court in Packingham, as well as the letter of the US Constitution. The court avoided general statements about an alleged people’s right to social media, rather focusing its attention on the legal fallacies of the North Carolina statute. The US Constitution frames itself the principle of freedom of speech as a negative right.
However, Justice Alito in his opinion, reproached the Court for not having ‘heeded its own admonition of caution’ in applying free speech precedents to social media. In particular, he considered it imprudent to draw an analogy between social media and public places that traditionally enjoy First Amendment’s protection. According to Justice Alito, this equation would erect a robust protection wall around the vast territory of cyberspace, and would risk, for example, limiting states’ ability to restrict access by registered sex-offenders to dating sites for teenagers.
The black and white interpretation suggested by Justice Alito, equating an important context for the exercise of freedom of expression to an almost untouchable environment, offers us the opportunity to reflect on the different approach that an Irish or a European court would have taken in a similar case. The basic difference between the American and the European conception of freedom of expression is already apparent at a formal level. The First Amendment is formulated in absolute terms, while, taking as an example the European Convention of Human Rights, article 10(2) subjects the freedom of expression to a series of qualifications. Consequently, in the European context, considering cyberspace and in particular social media, as a context deserving constitutional protection would not have impinged on the possibility of restricting its use for legitimate aims.
In light of these considerations, in a similar case, would a European court have reached a different conclusion? Probably not. Notwithstanding their differences, the American and the European approaches seem to de facto converge when coming to assess the proportionality of a restriction of freedom of expression. North Carolina’s ban would have looked disproportionate also from a European perspective.
In conclusion, social media have become an integral part of the architecture of contemporary society. They represent an unprecedented enabler of fundamental rights, but at the same time, a threat against which, at the moment, many states are reacting. Packingham is a good example to remind legislators that, when striking a balance between competing rights and interests, ‘proportionality’ will be the keyword to take into consideration.
Is mise le meas,
Edoardo Celeste
