When Packingham Met Chesterton

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.

11 thoughts on “When Packingham Met Chesterton

  1. Richard Kopf


    There is more than a bit of the “sweet mystery of life” stuff in Kennedy’s opinion. For example: “The nature of a revolution in thought can be that, in its early stages, even its participants may be unaware of it. And when awareness comes, they still may be unable to know or foresee where its changes lead.”

    As you imply, this was a really easy case. It could have and should have resulted in a short per curiam opinion. By the time the Court took up the case, the lower federal courts had made it quite clear that statutes such as NC’s were blatantly unconstiutional.

    By the way, I think my old opinion in a similar case was the first time we crossed paths. Among other things, you wrote: “Notwithstanding Judge Kopf’s slightly embarrassing inclusion of MySpace in his list of really cool places on the interwebz (bear in mind it is Nebraska, and it takes a while for the internet to reach there) . . . .”

    And that leaves me with a question. Why do you hate “MySpace?”

    All the best.


    1. SHG Post author

      Dignity, Judge. Dignity. I’m all about dignity, just like Justice Kennedy. That’s why I was so gracious in giving Nebraska the back door. A dignified exit. At the end of the day, it’s just dignity. Did I mention dignity?

    2. Jim Majkowski

      Your Honor,

      If the case was, as you write, “a really easy one,” and the NC statute “blatantly unconstitutional,” the highest court of a sovereign state held otherwise. How might a per curiam short opinion impact its dignity? Or is that irrelevant?

      1. Patrick Maupin

        According to wikipedia, “Some of the practices that violate human dignity include torture, rape, social exclusion, labor exploitation, bonded labor, and slavery.” I’m not sure that a concise statement that a court was wrong falls neatly into any of these categories, as long as the judges still socialize, but YMMV.

        1. Jim Majkowski

          Patrick (if I may be so familiar),

          I wanted to make my comment as brief as possible. I wasn’t so much concerned with defending the NC S Ct as with asking whether even SCOTUS can get away without at least lip service to their feelz. As I remember, for example, Frankfurter was manic to be sure SCOTUS carefully husbanded its authority in order to maintain it.

          When I read the SCOTUS opinion’s description of the state proceedings, I got the impression that in NC, Javert must be regarded as Les Miserables ‘ hero. A cop reads a FB post of a guy elating his luck that a traffic cop let him walk, and the authorities take it to the state’s highest court to see him convicted? Scary.

        2. Billy Bob

          Is that a recreational vehicle, or a new brand of vodka, Patrick? Judges socialize! The End is Near.

          1. Patrick Maupin

            It would be a microaggression for me to tell you where to stick your socializing judges, Bill, and I would never do that. Besides, you’re always trying to put ’em there, anyway.

      2. Richard G. Kopf


        You can write a short per curiam opinion and still be respectful. The Court does that all the time.

        All the best.


  2. Fubar

    …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.

    To minimize harm through reliance
    On principles clear as in science,
    Teach all lawyers in school:
    Reverse Butcher Dick’s rule.
    First thing, you should kill all your clients!

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