There was another significant fandom-impacting ruling from the Supreme Court on June 19, 2017 - but

There was another significant fandom-impacting ruling from the Supreme Court on June 19, 2017 - but there are some trigger warnings for the sex-offender case involving someone on the registry for statutory rape. In Packingham v. North Carolina, a North Carolina law made it a felony for anyone on the sex offenders registry to access social media websites, including Facebook and Twitter, if there was any chance for them to encounter - not just interact with - minors. They were literally banned from accessing any social media sites or platforms that are commercial and that permit minors to become members. The ruling does not impact the ability of states or localities or the feds to require those on the registry to use software to document all sites they visit, or use keystroke-recorders, or other monitoring tools. The Court specifically stated that they assume that “the First Amendment permits a State to enact specific, narrowly-tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor. “What it does say is that “A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.” (That’s Justice Kennedy, writing for the Court.)As the EFF said back in December when talking about their amicus brief, “People banned from social media are greatly handicapped in their ability to participate in the political, religious, and economic life of our nation.”The Court agreed and said, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.“How does this impact fandom?You know those three-strikes-and-your-account-is-cancelled processes in connection with copyright infringement? (Yes, even @staff has done this.) Is copyright infringement - rather than a violation of a site’s rules regarding behaviour and content - grounds to foreclose someone’s access to a social media platform? This case doesn’t issue a solid opinion on that, but it does give guidance that even three or four instances of copyright infringement are not grounds to foreclose someone’s access, permanently, to a social media platform. The government cannot decide to foreclose individuals’ access to social media altogether, because doing so prevents “the user from engaging in the legitimate exercise of First Amendment rights”. Private entities, of course, can make their own decisions as to who can and cannot use a site, but the three-strikes copyright issue is pushed onto wesbites by the DMCA, which is a government-created policy. If a site bars a user only because the DMCA mandates it so the site can keep its “safe harbor” protections, then a court might see the bar as a state action, which brings the First Amendment into play. It will be interesting to see if people barred from sites because of DMCA-mandated “three strikes” policies push back to get their accounts back because of this ruling. It definitely makes it more difficult for copyright absolutists to convince Congress and the courts that banishment from the internet is a fitting punishment for non-criminal copyright infringement. We’ll keep our eye on what happens next. And there’s also Net Neutrality. Some commentators have pointed to Justice Kennedy’s language in this case as being pro Net Neutrality - if access to social media and the internet is a First Amendment right, then government restriction of that right via changes to Title II might violate the First Amendment.  -- source link

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