FREEDOM OF EXPRESSION

Duguid v. Facebook, Inc.

Issues

Does the Telephone Consumer Protection Act of 1991 prohibit the use of a system that stores phone numbers and dials them automatically?

This case asks the Supreme Court to interpret the definition of an automated telephone dialing system (“ATDS”) as set forth under the Telephone Consumer Protection Act of 1991 (“TCPA”). The statute defines an ATDS as equipment that “has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Employing a grammatical analysis, Respondent Facebook contends that a system is an ATDS only when it can automatically call phone numbers that were produced or stored using a random number generator. Also using a grammatical analysis, Petitioner Noah Duguid counters that an ATDS encompasses a system that can store and automatically call phone numbers, irrespective of whether the system uses a random number generator. The outcome of this case has significant implications in determining the type of devices and systems that could qualify as an ATDS and what callers could be subject to the $1,500-per-call statutory liability under the TCPA. 

Questions as Framed for the Court by the Parties

Whether the definition of an "automatic telephone dialing system" in the Telephone Consumer Protection Act of 1991 encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.”

Responding to the rise of unsolicited and intrusive robocalls, Congress passed the Telephone Consumer Protection Act of 1991 (“TCPA”). Duguid v. Facebook, Inc., (9th Cir.

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Packingham v. North Carolina

Issues

Does a North Carolina statute making it a felony for registered sex offenders to “access” social networking websites that allow minors to have accounts violate the First Amendment?

In 2002, Lester Gerard Packingham pled guilty to taking indecent liberties with a child and was registered as a sex offender in the state of North Carolina. After posting on Facebook in 2010, Packingham was arrested and convicted under a North Carolina statute that prohibits all registered sex offenders from accessing any social networking website. Packingham appealed, arguing that the law violated the First Amendment. The Supreme Court of North Carolina affirmed Packingham’s conviction, finding that the law was an acceptable content-neutral speech restriction. Packingham argues that the law is substantially overbroad and is therefore unconstitutional both on its face and as applied to this case under either strict or intermediate scrutiny. North Carolina maintains that the law is narrowly tailored to achieve the government’s interest in protecting children from sexual abuse and therefore satisfies intermediate scrutiny. The Supreme Court’s decision in this case will impact the balance between state governments’ interest in public safety and convicted persons’ First Amendment rights.

Questions as Framed for the Court by the Parties

The North Carolina Supreme Court sustained petitioner's conviction under a criminal law, N.C. Gen. Stat. § 14-202.5, that makes it a felony for any person on the State's registry of former sex offenders to access a wide array of websites-including Facebook, YouTube, and nytimes.com-that enable communication, expression, and the exchange of information among their users, if the site is know[n] to allow minors to have accounts. The law—which applies to thousands of people who, like petitioner, have completed all criminal justice supervision—does not require the State to prove that the accused had contact with (or gathered information about) a minor, or intended to do so, or accessed a website for any illicit or improper purpose. The question presented is: Whether, under this Court's First Amendment precedents, such a law is permissible, both on its face and as applied to petitioner-who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring God is Good!

On May 30, 2012, Lester Gerard Packingham, a registered sex offender, was found guilty of using a social network website in violation of N.C. Gen. Stat. § 14-202.5. See State v. Packingham, 368 N.C. 380 (2015). N.C. Gen. Stat. § 14-202.5 is a North Carolina statute that makes sex offenders’ use of social networking websites, like Facebook, illegal.

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