The plaintiff in the other free-speech case, Packingham v. North Carolina, was far less sympathetic. When he was a 21-year-old college student in 2002, Lester Packingham pled guilty to a sexual crime involving a 13-year-old girl. North Carolina law automatically required him to register in the state’s sex-offender database. Six years later, the state passed a law making it a felony for registered sex offenders to access a “commercial social-networking site.” The statute defined what falls under that definition with incredible breadth: Alito wrote in his concurring opinion that accessing Amazon, Walmart, and WebMD could violate the law.
In Packingham’s case, the accessed website was closer to what the law’s drafters seemed to have in mind. After winning a traffic-court dispute in 2010, he posted a celebratory remark on Facebook. “Man God is Good!” Packingham wrote. “How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent. . . . . .Praise be to GOD, WOW! Thanks JESUS!” A police officer saw the statement and arrested him for it; Packingham’s lawyers say more than 1,000 other registrants have been charged and tried under the same provision.
The eight justices who heard his case—Neil Gorsuch didn’t join the Court in time to participate in Packingham or Tam—unanimously ruled in his favor and struck down the North Carolina statute in question. But they sharply differed in their style and approach to the underlying issues. Kennedy, for example, adopted the contemplative, nebulous tone he typically reserves for landmark decisions on abortion or LGBT rights.
“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 for the Court. “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.”
From Kennedy’s perspective, this meant the Court should exercise “extreme caution” before limiting the First Amendment’s application to the internet, even when the restrictions target one of society’s most universally loathed groups. “It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences,” he explained. “Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.”
Kennedy’s opinion drew some criticism from Alito, who concurred with the overall result but wrote separately because of his dissatisfaction with Kennedy’s “undisciplined dicta,” the formal term for the extraneous parts of a judge’s opinion that don’t directly affect the case itself. “The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks,” Alito wrote, metonymously referring to Kennedy and his majority opinion’s sweeping language. Chief Justice John Roberts and Justice Clarence Thomas joined him.