A Voice, If You Can Keep It

By Guy Hamilton-Smith (Leading with Conviction™ 2019):

In bringing a First Amendment lawsuit challenging Kentucky’s newly-passed law prohibiting anonymous speech on social media platforms by some people with past sex-related convictions, I anticipated that the media would likely want to focus on my own story, and my own past.

I’ve written before about my own arrest in 2006, and my gratitude for it. The freest I ever felt was in an interrogation room in handcuffs. My experiences with the legal system gave me a vision of a criminal justice system that could bring all parties to a crime together – the person who caused harm, the person who was harmed, and the community – and leave everyone better for it. I was extremely fortunate, but many are not. It was those experiences that inspired me to apply to law school, and eventually, to become an attorney.

To be sure, Kentucky’s new law does not outright ban speech on social media, nor could it. But for many people, including my client, it is a ban by any other name.

In 2017, the United States Supreme Court decided a case called Packingham v. North Carolina, which considered a North Carolina ban on social media use for people with past sex convictions. The Court struck it down, with then-Justice Kennedy writing that: “Even convicted criminals – and in some instances especially convicted criminals – might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.”

Justice Kennedy described my path, and the impact that “access to the world of ideas” has had on my life. I am “especially convicted criminals.”

A few years before Packingham, my best friend in law school and I cooked up an idea to challenge Kentucky’s similar law. The plan was not only to win, but to then use social media as a means of advocacy, public education, and networking. That case was John Doe v. Commonwealth ex. rel. Tilley. I was John Doe.

We won, striking down – amongst other things – Kentucky’s ban. I joined social media under my name, did an AMA, networked, and wrote. One of the things that I wrote was a law review article about the importance of social media access, and my own experiences. The article itself was an opportunity that was presented to me by way of an acquaintance I met on Twitter. In the article, I wrote that: “[Mine and my friend’s plan] has taken an enormous amount of work and planning that has spanned several years now. Unnumbered days and nights of research, writing, talking, rewriting. Recruiting expert witnesses willing to serve pro bono. Waiting. Heartbreak. Yet more waiting. In fact, the work is still underway. Tilley was just the first phase of the plan. You, by reading what I have written, have helped with the second.

“What good is being given a voice only to persist in silence? Of what value does speaking hold if one is forced to do so only amongst the trees, or to the choir?

“It may be that you find what I have written to be detestable, nonsensical, and even dangerous. If so, you will undoubtedly find me up for a robust debate. Whatever your reaction, you will surely agree with the fact that I was even afforded the opportunity to write the words you find so objectionable, and thus for you to be aggrieved by them, is in itself, nothing short of a small miracle.

“And with that, God is good indeed, Mr. Packingham.”

The lawsuit led to social media, which led to writing, which led to a job, which led to connections, which led to my becoming a JLUSA graduate, which led me to apply to take the bar exam in D.C., which led me to the life I have today. Packingham and Tilley, and the values that they protect, led me to becoming an attorney.

Tilley has, in some ways, come full circle. Back to another federal courtroom in Kentucky, to fight another social media law. This time, as counsel. To be sure, Kentucky’s new law does not outright ban speech on social media, nor could it. But for many people, including my client, it is a ban by any other name.

Social media certainly has ills, too, that highlight the importance of anonymity. I understand all too well the burdens that come with being public, and being either unpopular, or controversial. I have lost count of the number of times that I have been harassed, or had my life threatened on social media. I am numb to it. My decision to be public was not, initially, by choice. But for many including my client, a requirement to self-identify is too steep a price to pay to avail themselves of the First Amendment rights that Packingham says they have.

The district court granted my motion for a preliminary injunction, finding that the law likely violates the Constitution. The Attorney General of Kentucky has appealed that ruling to the United States Court of Appeals for the Sixth Circuit, and the fight will continue there. The path that’s brought me here is why it’s a fight I believe in. My conviction isn’t the whole story. It’s the beginning of it.