At Volokh Conspiracy, Stuart Benjamin discussed a critical aspect of the Supreme Court’s opinion in Packingham v. North Carolina. The Court held the North Carolina prohibition against sex offenders having post-sentence First Amendment rights unconstitutional.
[T]he justices unanimously (minus Gorsuch) voted to invalidate a North Carolina statute making it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” But Justice Alito, joined by Roberts and Thomas, concurred only in the judgment. All eight Justices agreed that the statute wasn’t sufficiently tailored. Both opinions emphasized the possible application of the statute to Amazon.com, washingtonpost.com, and webmd.com.
The distinction between majority and concurrence was one of degree, as Alito, Roberts and Thomas wouldn’t preclude a better tailored law from prohibiting “registered” sex offenders from possessing basic constitutional rights in ubiquitous technology. For the children.
But the opinion, in its musing, discussed what the Court’s default approach to fluid technological change should be, which is a huge open question going forward.
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. 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.
Pretty cool that the Supremes finally figured out that the internet is here to stay. They may even realize that Moore’s Law supersedes their own. So how does a Court make rules about the use, or felony prohibition of use, of tech when the tech before them is likely obsolete by the time the case reaches them, and almost certainly obsolete “tomorrow.”
To fully appreciate the importance of this problem, consider Smith v. Maryland, which gave birth to the Third Party Doctrine because of the then-newest, coolest piece of law enforcement technology, the trap and trace device. Back then, technology was good for a while, except for 8-track tapes. There would surely be time to reconsider a ruling that was dependent on the particulars of way-cool tech when the next iteration came along. Except we’re still subject to the Third Party Doctrine today, even though everything is different and its rationale makes no sense at all anymore.
Did the Supremes learn anything? Of course they did.
When it comes to changing phenomena (like cyberspace), what is the best default position with respect to the First Amendment? Should judges err on the side of starchy application of free speech tests, or a more flexible approach? This are not new questions. For instance, back in 1996, in Denver Area Education Telecommunications Consortium, Inc. v. FCC, the Supreme Court considered regulation of indecency on public access and leased access channels.
Justice Souter wrote a concurrence suggesting that, in the fast-changing world of telecommunications, judges should heed the admonition “First, do no harm.” Justice Kennedy responded: “Justice Souter recommends to the Court the precept, ‘First, do no harm.’ The question, though, is whether the harm is in sustaining the law or striking it down.” As I noted in a different article, “the injunction ‘[f]irst, do no harm’ provides little guidance unless we can identify what the ‘do no harm’ position is.”
Okay, no they didn’t. Much as “do no harm” sounds a heck of a lot better than “harm away, we’ll make more,” the physicians’ admonition, attributed to Hippocrites, primum non nocere, doesn’t work as well in law as it does in medicine. Killing the patient makes for pretty clear harm. In law, the choices aren’t as clear. After all, rule one way, one side may suffer. Rule the other and the other takes the hit. Somebody is going to be harmed, and the question is who and why.
While Benjamin raise this critical problem, he has no answer.
In Monday’s case, Justice Kennedy’s majority opinion, consistent with his concurrence in Denver Area and his First Amendment jurisprudence more generally, treats broad and rigorous application of First Amendment tests as the “do no harm” position in the ever-changing world of cyberspace. Justice Alito’s concurrence wants a default that takes smaller steps and gives judges (and thus legislatures) more flexibility. Obviously there is no ineluctable answer here. But, once again, baselines are doing a lot of work.
To call this unsatisfying, if not incomprehensible (what does “smaller steps” mean, exactly?), is an understatement. But that the “baselines are doing a lot of work,” meaning (I think) that the default position to be overcome by the party seeking change can cause substantial harm in itself, and so must be based on a pretty sound reason to justify the damage it will do. After all, if a rule exists, and the contention is that the rule no longer suffices in light of tech change, but with recognition that this moment’s tech is likely to be obsolete tomorrow, the fix that makes sense today may well produce tomorrow’s even greater harm.
But there is, I suggest, an answer to this very difficult question: Chesterton’s Fence.
In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.
Much of our jurisprudence violates this precept, which is why we’ve become a nation of uncountable crimes and regulations, exceptions dwarfing rules, tails wagging dogs, the Third Party Doctrine and cute-doggy sniffs overcoming the right to be free from warrantless searches and seizures.
Tech changes. It changes all the time. People change too, but not so much as tech. Our rights? Maybe they would do well not to change in knee-jerk reaction to technology, but by that, we would have to go back to the beginning and put back the fences we tore down along the way.