Banned from Facebook? There's a whole world wide web out there!

Photographer: FREDERIC J. BROWN/AFP/Getty Images

Sex Offenders Don't Have a Right to Facebook

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

North Carolina bans registered sex offenders from Facebook. Unsurprisingly, a sex offender wants the Supreme Court to strike down the law. Perhaps more surprisingly, he has support from 16 notable professors of constitutional law -- from left, right and center.

I’m loath to disagree with an all-star cast of colleagues that includes some of my teachers and good friends. But I think their argument goes too far.

Supreme Court precedent requires that a ban on speech allow “ample alternative channels” for expression. The North Carolina law says that registered sex offenders can’t access social networking sites that allow underage members -- which would rule out all the big networks like Facebook, Twitter, Instagram, Snapchat and Tumblr. Are there ample alternative channels? The professors say no.

I say … yes. There's no disputing the ubiquity of social media. But there are still other ways to express your ideas and communicate with other humans. Without social media, I can still create content and publish it. I can read a vast array of opinions of others. And I can communicate directly with other people, through e-mail and other platforms.

What really bothered my colleagues was the North Carolina Supreme Court’s application of a 1994 Supreme Court case called City of Ladue v. Gilleo. In that case, the court struck down a city ordinance that banned all signs in front of private residences. Justice John Paul Stevens said that “even regulations that do not foreclose an entire medium of expression … must leave open ample alternative channels for communication.”

The North Carolina court did not make my argument -- that social media is not essential -- but instead said that the state law left “numerous” alternative social media channels, like the Paula Deen Network, where users share recipes; a local radio station’s user network; a website called Glassdoor.com, which requires users to be 18; and Shutterfly, the photo site.

In the best line of their brief, the law professors say, with some justice, that the list of Facebook alternatives proposed by the court “looks more like a parody of the ‘ample alternative channels’ analysis than a serious application” of it.

But a poorly argued state Supreme Court opinion isn’t a reason to conclude that the law upheld is actually unconstitutional. The real issue here is whether being blocked from a market-dominating medium like Facebook leaves a person without ample alternative channels of communication. The professors point out that hundreds of millions of people are on Facebook and that presidential campaigns and others use the platform. And they give statistics for the widespread use of other social media platforms.

What’s most troubling about the professors’ argument is that it treats a specific medium as necessary to free speech. When it came to the residential signs in the Ladue case, the real problem was that there’s a specific social meaning attached to putting up a political sign in your front yard: It’s speech that uniquely is associated with you. But that’s not true of your Facebook page, because in the absence of a Facebook account you could create your own website with identical content. True, the means of accessing a website are different – but that's why we call them alternatives, which the Ladue rule allows.

The other problem with the professors’ position is that, by implication, it subtly shifts the emphasis away from “ample” and toward a notion of the “alternative” as identical in scope.

In the Ladue case, the city’s interest in avoiding signs in front of residences was basically aesthetic. But the North Carolina law is trying to block sex offenders from making contact with minors.

In this context, an “alternative” channel can’t be one that achieves all the game goals that the speaker might want -- such as making social contact with minors.

The professors’ analysis seems to suggest that a court should ask whether the alternatives allow the speaker to achieve the same reach of speech. But no alternative would have that effect here. Even if we imagined a major social media platform that required you to be 18, it wouldn’t have as many users as the established networks that don’t have that age limit.

In a case like this, courts shouldn’t be asking whether the alternative provides the same reach as the prohibited channel. They should be asking whether the ban allows “ample” speech alternatives. The web offers ample alternatives to social media.

The North Carolina law may be overbroad, but it isn’t unconstitutional for the reasons my colleagues suggest.

  1. [1] I’m grateful to the invaluable How Appealing blog for drawing my attention to this blog post describing the case. Before Howard Bashman’s blog, it often took days or even weeks to find out about important appellate cases or intriguing briefs. It's no exaggeration to say that Bashman has changed the speed at which it’s possible to observe and comment on state and federal appellate courts across the country. Someone should give him a medal -- or an honorary degree.

  2. The friend-of-the-court brief was filed by Eugene Volokh, a leading First Amendment scholar, on behalf of these heavy hitters: Ashutosh Bhagwat, Richard Garnett, Andrew Koppelman, Seth Kreimer, Lawrence Lessig, Sanford Levinson, Robert O’Neil, David Post, Lawrence Sager, Seana Shiffrin, Steven Shiffrin, Geoffrey Stone, Nadine Strossen, William Van Alstyne and James Weinstein.

  3. As a policy matter, that seems to apply to too broad a category of people. It might make sense for people convicted of sex with minors, but it probably doesn’t for other sex crimes that could get you registered. But that concern isn’t at the heart of the law professors’ brief, and I won’t focus on it here.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net