Packingham v. North Carolina

In 2008, North Carolina enacted a law making it a felony for registered sex offenders to access commercial social networking websites that they knew permitted minors to create profiles. The statute swept broadly: it covered Facebook, Twitter, LinkedIn, and virtually every significant social media platform. There was no requirement that the offender have any contact with minors; merely accessing the platform as a registered sex offender was a crime.

Lester Packingham had been convicted in 2002 of taking indecent liberties with a child. In 2010, after a traffic ticket against him was dismissed, he posted on Facebook: 'Man God is Good! 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 Durham police detective conducting a routine search of registered sex offenders' social media activity found the post. Packingham was charged and convicted of the felony offense of accessing a social networking site as a registered sex offender. The North Carolina Supreme Court upheld the conviction.

Justice Kennedy wrote the opinion for a unanimous Court striking down the North Carolina law. Justice Alito, joined by Roberts and Thomas, concurred in the judgment but wrote separately to express concern that the majority's broad language might limit government authority to impose reasonable conditions on sex offenders' internet access.

Kennedy's majority held that social media platforms are the modern equivalent of streets, parks, and other public spaces where citizens go to speak, hear, assemble, and petition the government. A law that categorically bars a class of citizens from accessing these platforms does not merely restrict convenience; it excludes them from the principal channels of contemporary civic, commercial, and social life. The law was not narrowly tailored — it barred access to all social media rather than specifically targeting contact with minors or other specific harms.

Packingham is the Supreme Court's most direct constitutional recognition that social media platforms are significant public forums deserving First Amendment protection. Kennedy's 'modern public square' characterization elevated social media from a commercial convenience to a constitutional space — a medium in which access has First Amendment value for both speakers and listeners.

The decision's significance extends beyond the specific statute at issue. By holding that restricting access to social media restricts First Amendment rights, the Court established the premise for future arguments about deplatforming, access rights, and the constitutional status of platforms that function as gatekeepers to public discourse. If social media is the modern public square, then exclusion from social media raises constitutional questions analogous to exclusion from public streets.

Alito's concurrence expressed a concern the majority did not fully answer: social media platforms are not public squares owned by the government but private commercial services with their own First Amendment rights. The tension between Packingham's 'modern public square' premise and platforms' own speech rights under Moody v. NetChoice (2024) is one of the most contested doctrinal questions in contemporary First Amendment law.

Packingham is cited in virtually every major internet speech case decided since 2017. Moody v. NetChoice (2024) invoked it as part of the framework establishing the constitutional significance of social media access. Lower courts have applied Packingham to challenge social media access conditions in parole, probation, and pretrial supervision orders, and have struck down categorical social media bans as overbroad under its analysis.

The 'modern public square' framing has become a staple of internet free speech scholarship and advocacy, cited in arguments that dominant platforms should be subject to public forum doctrine, that deplatforming of political speakers raises constitutional concerns, and that government pressure on platforms to remove disfavored content amounts to viewpoint discrimination in a constitutionally significant space.

Packingham directly governs the constitutional analysis of laws restricting social media access for convicted offenders, persons on supervision, and others. Multiple states have enacted social media age-verification laws and access restrictions on various grounds; courts applying Packingham's overbreadth analysis have struck down several.

The decision also intersects with the deepest structural question about the internet today: when a handful of private platforms control access to the 'modern public square,' does the First Amendment place any limits on their power to exclude? Packingham established that government cannot exclude persons from social media; Moody and its antecedents hold that the platforms themselves have First Amendment rights to curate. The resulting tension — between the constitutional significance of access and the constitutional protection of editorial discretion — remains the central unresolved question of internet free speech law.