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As most VC readers know, First Amendment law is dominated by a single question, the 800-pound constitutional gorilla that’s always in the room: What “level of scrutiny” will the court apply to the challenged government action? a statute that regulates speech is subjected to exacting scrutiny: The State must show that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. But reasonable people can disagree, perhaps, about all that. [T]he statute here defines a “commercial social networking Web site” as one that facilitates social introduction between people, and provides users with a means of communicating with each other. This limitation on conduct only incidentally burdens the ability of registered sex offenders to engage in speech after accessing those Web sites Thus, accessing Facebook is conduct, not speech, and a prohibition on such access gets only the lowest form of scrutiny under the First Amendment. That is precisely like saying that a prohibition on using a telephone, or a printing press, is merely a regulation of “conduct” — because, I suppose, it constrains the physical acts of picking up and dialing a phone, or turning on a machine, with only an “incidental” burden on whatever happens those actions take place.How much will it demand from the government by way of justification for whatever it was that it did? Critical to that determination is the threshold question: Is the challenged government action a regulation of/burden on . But one thing I would think we could all agree on is that this is surely a regulation of . As is apparent to any who access them, social networking Web sites provide both a forum for gathering information and a means of communication. Or how about a law prohibiting convicted felons from entering a public library?Under state and federal laws, it is illegal for an adult to engage in sexual-related contact and communication with those under 18 years old through the internet.
It is well established that, as a general rule, the Government “may not suppress lawful speech as the means to suppress unlawful speech.” … You can’t “suppress lawful speech as the means to suppress unlawful speech.” Exactly.
The growth of technology and the ever burgeoning internet has made it easier than ever for individuals to connect with others across the country and globe.
But this has also brought with it new types of crime and an even more aggressive prosecution of those accused of internet crimes, especially allegations that pertain to crimes involving anyone under the age of 18.
One interesting question here: How, in heaven’s name, could court (or, for that matter, any legislature) think that this scheme comports with the First Amendment?
But the North Carolina Supreme Court had so held, in a decision I described at the time as preposterous.