'Internet' or 'internet'? The Supreme Court Weighs in

Justices Kennedy and Alito are engaged in a low-key capitalization battle that may change the future of digital law.

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Jun 22 2017, 1:00pm

Image: Shutterstock Remix by Jason Koebler

In its Monday decision on the First Amendment and social media, the Supreme Court entered into one of the most divisive debates today: whether the word "Internet" is capitalized. And remarkably, the justices' choice of capitalization appears meaningful, in ways that that could shape future technology law.

The decision in Packingham v. North Carolina struck down a North Carolina law prohibiting registered sex offenders from accessing social media services on First Amendment grounds. Although all eight justices (Gorsuch did not participate) agreed that the law was impermissible, they divided sharply on the reasoning—and on capitalization style.

Justice Kennedy, writing for a five-justice majority, reasoned that the "vast democratic forums of the Internet" are "the most important places…for the exchange of views" today. Thus, he said, even barring registered sex offenders from just traditional social networking services "like Facebook, LinkedIn, and Twitter" was unconstitutional when such services are now "integral to the fabric of our modern society and culture."

In contrast, Justice Alito, writing for himself, Chief Justice Roberts, and Justice Thomas, found "the internet a powerful tool for the would-be child abuser." Alito deemed North Carolina's law unconstitutional for banning even sites like Amazon, the Washington Post, and WebMD, but he would have given states more leeway to block particular websites or services.

These differing opinions arise from fundamentally different understandings of the Internet, which coincide with the arguments for and against capitalizing the word. Proponents of uppercase-Internet contend that the Internet is a singular place, like the Earth, making it a proper noun. Those who favor lowercase argue that the internet is a generic tool, like earth, of interest primarily for what can be built with and upon it, and too common and ubiquitous to merit a capital letter.

Whether the Internet is a single place or just a way to reach many places—that is at the heart of the differing views in Packingham. Kennedy, who consistently capitalizes "Internet," describes the system "in a spatial sense" and treats it as a single, massive conversation for "knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the fast realms of human thought and knowledge."

In response, Alito, who exclusively uses lowercase-internet fifteen times, chides Kennedy for "musings that seem to equate the entirety of the internet with public streets and parks." He scare-quotes a reference to "a 'place' ( i.e., the internet)," and his analysis ultimately comes down to analyzing whether individual internet websites raise First Amendment concerns. The genericism of little-i internet amplifies Alito's dismissal of the Internet as a single, unified dialogue, in favor of a disaggregated internet that can be restricted or blocked in parts.

Packingham is the only Supreme Court case I find to extensively use "internet" in lowercase, but two others (the only two to use lowercase substantively, to my knowledge) are instructive.

In Ashcroft v. ACLU, Justice Kennedy, writing for the majority, struck down an anti-Internet pornography law under the First Amendment. He capitalized the word, but Justice Breyer, in dissent, saw the law as more benign, only requiring "creation of an internet screen" to filter children out. (Worth noting: Breyer was inconsistent and otherwise capitalized Internet. Also, in the final published opinion, the Government Printing Office corrected Breyer to capitalize all instances.)

In Dietz v. Bouldin, Justice Sotomayor for the majority permitted a judge to recall a jury for a do-over verdict as long as the judge considered factors like "to what extent just-dismissed jurors accessed their smartphones or the internet." Justice Thomas in dissent would have held to the traditional rule prohibiting jury recalls, especially given "today's world of cellphones, wireless Internet, and 24/7 news coverage."

These opinions are at least consistent with "Internet-as-place, internet-as-generic": one who views the internet as a branching roadway rather than a unified conversation would be more likely to approve of "internet screens" to block paths to pornography, and would have less fear of jurors being tainted by online conversations about a case.

Of course, the capitalization discrepancy in the Packingham opinions and others may be due instead to the personal styles of the justices or their clerks (though Alito has capitalized before), or may simply be a fluke of drafting (though Alito's usage certainly seems intentional). But the differing conceptions of the Internet, suggested by capitalization and confirmed by the justices' reasoning, have great importance for future cases.

Several experts have noted that Packingham's broad statements on the importance of Internet access could affect cases on whether Internet service providers must terminate service due to copyright infringement. And Carpenter v. United States, in which the Supreme Court will decide whether cell phone location data collection violates the Fourth Amendment, could turn on how essential mobile Internet access has become today. These cases may very well depend on whether the justices see the Internet as "the modern public square," as Kennedy said in Packingham, or merely as a "tool" according to Alito.

For me, I prefer the Internet as the modern public square. Certainly there are awful and divisive words said online. But still, I prefer that global, unbroken conversation; that single place that allows us to speak to unseen multitudes and hear from diverse and unexpected corners; that technology made world-changing through its quintessential feature, the hyperlink, that can connect anything with anything else—that unified vision represented by a capital-I Internet. Given the Packingham decision, it seems that a majority of sitting Supreme Court justices prefer that vision too.

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