You can't take the pervs off Facebook, says US Supreme Court

First Amendment rights and dancing babies

Facebook is a sex offender-friendly zone – by order of the Supreme Court.

The unanimous decision by the justices strikes down a North Carolina law that forbade anyone found guilty of a sex crime from using "commercial social networking websites" such as Facebook, Twitter and LinkedIn, using the logic that they allow minors to create and maintain personal web pages.

But the court decided [PDF] that ban is excessive given that social media is far more than just a place where young people gather. "With one broad stroke, North Carolina 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," reads the judgment.

As such, it decided: "Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights."

In one sense, it is remarkable that the issue made its way up to the Supreme Court at all. The law was passed in 2008 and has been used to prosecute over 1,000 people. While the immediate logic of preventing convicted sex offenders from accessing online spaces frequented by children is clear, the size and scope of social networks made it an obvious target for judicial review.

In all likelihood, the reason it took so long is because of the type of individuals targeted under the law: there is little sympathy for sex offenders and few would want to expose themselves to even greater public scrutiny.

Pack 'em in

However, when Lester Packingham was caught using Facebook by a police officer who was specifically trawling the social media service to find people on the sex offender list, he decided to fight back. That same day, the officer tracked down seven sex offenders using Facebook and sought to prosecute them all.

Except there is no evidence that Packingham – who was indicted in 2002 for having sex with a 13-year-old and received a suspended sentence – was using the site for anything except keeping up with friends and family. The post (under a pseudonym) that saw him landed back in court was about a traffic ticket that had been dismissed.

He fought that conviction, arguing that his First Amendment rights were being infringed, and lost. So he appealed – and won. But then the state appealed that decision and North Carolina's supreme court reversed it, finding that the law was legal. Which then led to Packingham appealing it to the Supreme Court and finally winning. In all, it has taken seven years.

The state's argument, which its supreme court agreed with, was that rights are often infringed when it comes to certain types of criminal convictions – sex offenders being the most common – with restrictions on their movement and, often, requirement to publicly report their location.

The state argued that although sex offenders are prevented from using Facebook, Twitter et al, there are plenty of other ways to communicate online and so their First Amendment rights were not being infringed.

And it argued that sex offenders could use the services to build up information on children and target them, but that since it does not have the ability or resources to monitor all activity, the only pragmatic solution was a blanket ban.

Nope

But the court effectively decided that social media was too big and too important in the modern world for people to be legally prevented from using it.

"A fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more," read the judgment, adding: "Today, one of the most important places to exchange views is cyberspace, particularly social media."

The court also reflected on the fact that the internet is still young and yet has far-reaching impacts on society: "The Internet's forces and directions are so new, so protean, and so far-reaching that courts must be conscious that what they say today may be obsolete tomorrow."

As for the state's case, it decided that "the State has not met its burden to show that this sweeping law is necessary or legitimate to serve its purpose of keeping convicted sex offenders away from vulnerable victims."

Although there was no dissenting opinion, two justices – Alito and chief justice Thomas – wrote a separate opinion because they disagreed with the main judgment's "musings that seem to equate the entirety of the internet with public streets and parks."

While they agreed that the North Carolina law infringed on the First Amendment, they were concerned that the judgment would be interpreted so widely that it causes states to become "largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites."

The concurring judgment also complained that the internet is "a powerful tool for the would-be child abuser," since it allows people to easily access others' personal information, as well as location, and to communicate directly with one another.

As such, it is "legitimate and entirely reasonable for States to try to stop abuse from occurring before it happens," notes the judgment. However, in this case, the law was too far-reaching in that it shut down "substantially more speech than is necessary to further the government's legitimate interests."

Despite this long legal battle, it is worth noting that Facebook actually bans any convicted sex offenders from using its service and has a reporting mechanism for other users to flag anyone that they suspect of being one.

Second important case

Among the raft of decisions made by the Supreme Court on Monday, another covers a long-running and important internet case: that of the dancing baby.

Back in 2007, a mom – Stephanie Lenz – posted a video of her toddler running around and dancing in her kitchen to YouTube. In the background, it is just possible to make out that the song he is dancing to is "Let's Go Crazy" by Prince. As a result, Universal Music sued, claiming that Lenz was infringing its copyright.

The case was such a clear-cut example of "fair use" that lawyers used Lenz's case to try to establish solid rules around copyright use online. And the copyright industry fought back just as strongly in order to prevent the law from swinging too far the other way.

The end result, after years in the court, is a compromise that no one is happy with: not Lenz, not Universal music and not even the legal system.

The Ninth Circuit decided with Lenz and said the video was fair use. But it also decided that Universal was not liable for its actions and so she was not owed any compensation. Universal and other copyright holders are not happy though, because the court decided that copyright holders have to "consider fair use" before sending takedown notices – putting the onus on them.

Lenz's legal team is equally unhappy that the consideration only has to be a "subjective good faith belief" arrived at by a company – which makes it very hard to prove.

Error

And the legal profession is unhappy with the Ninth Circuit opinion because it focused on "the truth or falsity" of Universal's claim that it had acted in good faith – ie, whether Universal had bothered to carry out a review into whether the video was infringing before firing off a takedown notice.

The Solicitor General called this approach a "significant legal error" and argued to the Supreme Court that the appeals court should have focused only on whether Universal had "knowingly misrepresented petitioner's video to be infringing" – ie, it knew it was fair use but sent the takedown request anyway.

The Solicitor General advised the Supreme Court not to take the case, however, because it "does not provide a suitable vehicle for correcting that mistake ... because the error potentially benefits petitioner and respondents have not sought review of that aspect of the court of appeals' decision."

In other words, a clusterfuck of the highest order. And so the Supreme Court decided not to touch it and refused to hear the case. That sends it back down to the district court and Lenz's lawyers will now have to try to prove that Universal knew it was wrong to send the takedown notice – a big ask.

As such, the case looks likely to end up in a stalemate. But at the same time, the law underpinning that decision is flawed and so at some point will be overturned. So years of uncertainty over online video rights will be followed by years of uncertainty. ®