Tuesday, July 18, 2017

A First Amendment Right to Use Social Media

By Steve Stapleton

The Supreme Court on June 19, 2017 concluded that there is a constitutional right to use social media.*1

The case arose from a law passed in North Carolina that made it a felony for a registered sex offender “to access a commercial social networking website where the sex offender knows that the site permits minor children to become members or to create or maintain personal webpages.”  N.C.Gen.Stat. Ann. §§ 14-202.5(a), (e) (2015).  Under the law, a “commercial social networking website” is defined as a website that meets four criteria:  it must derive revenue from membership fees, advertising or other sources related to its operation; it must facilitate the “social introduction between two or more persons;” it must “[a]llow[] users to create webpages or personal profiles;” and it must “[p]rovide[] users or visitors … mechanisms to communicate with other users….”

In 2002, the petitioner was found guilty of committing “an offense against a minor” and as a result was required to register as a sex offender.  In 2010, the state court dismissed a traffic ticket against him and in response, the petitioner logged onto Facebook and posted the following on his personal profile:

Man God is Good! How about I got so much favor they dismissed the ticket before court even started?  No fine, no court cost, no nothing spent ….. Praise be to GOD, WOW! Thanks JESUS.

A member of the Durham North Carolina Police Department noticed that the petitioner had posted the statement and the petitioner was ultimately indicted by a grand jury for violating the North Carolina statute.

The trial court denied his motion to dismiss on the grounds that the charge against him violated the First Amendment to the Constitution; the court of appeals reversed, finding that the law was not narrowly tailored to serve the State’s legitimate interest in protecting minors from sexual abuse and was therefore unconstitutional; and the North Carolina Supreme Court reversed, concluding that the law is “constitutional in all respects.”

On appeal to the Supreme Court, the Court reversed noting that historically “[a] basic rule … is that a street or park is a quintessential forum for the exercise of First Amendment rights” … and that exercise is evidenced today in “cyberspace – the ‘vast democratic forums of the Internet’ in general … and social media in particular.”

Finding that the North Carolina statute “with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge,” the Court concluded that the North Carolina statute acted to “suppress lawful speech as the means to suppress unlawful speech.”  As a result, the Court concluded, the “law must be held invalid.”

  1. See e.g., Packingham v. North Carolina, No. 15-1194 (June 19, 2017), 582 U.S. __ (2017).

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