Reply To: Packingham: Unanimous Court strikes NC’s social media ban

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You’re absolutely right and you make a very good argument. I think, however, there may be an achilles heel here for Facebook. It’s a publicly traded company. Therefore, it’s not really a private entity any longer. It is subject to a whole host of regulations and government oversight that makes it more accountable to the public at large–as well as its stockholders–than is true for a closely-held corporation. If we read the opinion of the Court in Packingham, we see Justice Kennedy make the internet analogous to such new and revolutionary “inventions” as the railroads and the telephone (see page 6 of the majority). To the erudite mind (and particularly the legal mind), what one hears him saying is “public utility.” That’s precisely where Kennedy is going in his assessment. And, in truth, if one looks back at the whole panoply of cases concerning the internet (Reno v. ACLU and Ashcroft v. Free Speech Coalition, to name a couple), you see that the Court has been engaged in a protracted discussion with itself about how to treat the internet. Is it a utility or not? Because IF it is a public utility, then it is subject to a heightened standard of review when it comes to its policies regarding access and use. Imagine, if you will, that a registered citizen could be denied access to electricity, or water, or telephone service. That cannot be done, right? And why? Because that would be against the regulatory laws governing public utilities. This question has not been resolved. But the language Kennedy has chosen to use in the Packingham decision definitely places Facebook under a new light of scrutiny. And, if I’m an attorney for Facebook, I may be suggesting it’s time to rethink the policy…..especially since there is no longer any reason to worry about the threat of Attorneys General.