On Monday, February 27, 2017, during oral arguments in Packingham v. North Carolina, a case involving First Amendment rights of free speech pertaining to the use of social media by former sex offenders in North Carolina, U. S. Supreme Court justices expressed opinions of social media that show it has come a long way toward being considered mainstream communication. There appears to be acknowledgment By SCOTUS that social media are important and instrumental in the way human beings communicate.
The National Law Journal summarized the argument this way:
“On Monday, the court dealt with the subject head-on, using First Amendment metrics like ‘overbreadth’ and ‘strict scrutiny.’ And the justices showed a level of familiarity with social media that was surprising, given that most justices, when asked, say they don’t use Twitter or Facebook.”
First, The Case of Packingham v. North Carolina *
As summarized on SCOTUSblog, the issue is whether, under the court’s First Amendment precedents, a law 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, 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!”
Robert C. Montgomery, Senior Deputy Attorney General for The State of North Carolina, shared with the Justices:
“For many years, North Carolina, like other States, had laws prohibiting sex offenders from being at physical places where children congregate; schools, playgrounds, day cares, and parks. In 2008, North Carolina decided to prohibit sex offenders from being at virtual places where children congregate online; specifically, commercial social networking websites.”
The Justices Discuss Social Media
While reading through the argument, I found more than a few comments interesting.
Justice Kagan stated:
“So a person in this situation, for example, cannot go onto the President’s Twitter account to find out what the President is saying today? Not only the President. I mean, we’re sort of aware of it because the President now uses Twitter. But in fact, everybody uses Twitter. All 50 governors, all 100 senators, every member of the House has a Twitter account. So this has become a crucial — crucially important channel of political communication. And a person couldn’t go onto those sites and find out what these members of our government are thinking or saying or doing; is that right?”
Justice Kennedy drew an analogy between social media and the public square, where free speech rights are well-recognized. He said:
“Well, it seems to me, I don’t know if — that we ever did have a public square, but assuming we had a public square a hundred years ago, could you say that this person couldn’t go into the public square? The — the sites that Justice Kagan has described and their utility and their — and their — extent of their coverage are — are greater than the communication you could ever had, even in the paradigm of public square.”
Justice Sotomayor brought up LinkedIn while trying to focus the discussion and get to the heart of the matter about what is considered traditional social media:
“Take something like LinkedIn, which many, many people in our society today are looking for jobs there, but high school students are permitted to look for jobs and to post their data, personal data on that site. So, is that traditional social media or not?”
Justice Breyer, in an effort to understand where the line between physical and virtual appears, asked:
“What about all the orders — about all the ways you just listed that they have all the statutes would say you can’t approach children and say certain things….What’s the difference?”
While discussing the North Carolina statute that states the crucial factor in limiting the use of digital sites that link to other users’ profiles, Justice Kagan offered:
“But — but — I mean, yes, that narrows it. It — it takes the nytimes.com out of the statute, but it doesn’t take the sites that people use today, as I suggested — whether it’s Twitter or whether it’s Facebook — which have become incredibly important parts of our political culture, of our religious culture. If you ask, there are surveys that say how many Americans have communicated their faith on social networking sites in the — in the past week, and it turns out that one in five. That’s about 50 million Americans use this for religious community purposes. So whether it’s political community, whether it’s religious community, I mean, these sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights, haven’t they?”
A Growing Need To Understand Social Networking Sites
In what is, obviously, a growing need at every level to understand what each social networking and virtual site offers its users, Justice Kagan attempted to clarify the narrow tailoring North Carolina included in this statute:
“It seems that some — some of what’s exempted by the law seems, I have to say, some of the most dangerous stuff. So you exempt any website that provides only a chat room or only photo sharing. So why is that? Because if I would have said, like, where the most dangerous activity takes place, it’s in chat rooms and via photo sharing.”
“It just seems to exempt the stuff that’s most easily used to — to do exactly the things that this statute is meant to prevent.”
“When you just said to Justice Ginsburg, well, maybe that would be unconstitutional if they included these things that are instead exempted, so you mean that there’s a constitutional right to use Snapchat, but not to use Twitter?”
“Well, I would have — I would have thought that Snapchat is — is — maybe I have it wrong. I’m not any expert on this. But isn’t Snapchat photo sharing?”
Perhaps not fully understanding the immense amount of behind-the-scenes sharing that takes place on SnapChat, Senior Deputy Attorney General Montgomery attempted to share his knowledge of social networking sites such as SnapChat and Twitter:
“Well, Snapchat, as I understand it, you don’t get the level of information that you get from something else. Because Twitter is — you can find out much more information than you could from however many seconds of video or pictures or whatever you get with Snapchat.”
Justice Breyer, while discussing the merits of limiting access to information to those who have already been punished for their crime:
“Here, you take a group of people who’ve done something wrong, been fully punished, and you’re saying that they might say something to somebody which would be dangerous. And you’re right; it might be. On the other hand, your remedy from that is to cut off their speech.”
The argument continued while the Justices attempted to understand why it should be possible to limit access to social media that have now become sites enabling the free flow of information.
Justice Kagan:
“How many people under 30 do you think don’t use these sites to get all their information? Under 35? I mean, they’re — increasingly, this is the way people get everything that — all information.”
“This is the way people structure their civic community life.”
Justice Ginsberg discussed First Amendment rights connected to cutting people off from information:
“The point is that these people are being cut off from a very large part of the marketplace of ideas. And the First Amendment includes not only the right to speak, but the right to receive information.”
In his rebuttal, attorney Goldberg spoke to the proliferation of social media and “core-protected” speech.
“The President is speaking to the people through this medium. So it is an extraordinary argument to say not everybody does it. I don’t think that’s the test. The test is how much of your core First Amendment activity is foreclosed. And the ability to speak with this networked group of people all over the world is as strong — this is, as Justice Kennedy said, well beyond the traditional town square. And I’m sure there were people who didn’t go to the town square, but that wouldn’t be a basis for — for upholding a restriction there.”
I would imagine we will continue to see and hear arguments and cases directed toward the understanding, misunderstanding, use, and misuse of social and digital media. If The Supreme Court of The United States has begun to acknowledge the importance of these sites, and of the rights of US citizens to communicate and learn on and from them, we certainly have reached a tipping point. Stay tuned for what will be an interesting, and sometimes challenging, dissection of tools that have become an obvious part of our rights and our culture.
*Please know I am not an attorney, nor am I attempting to provide legal counsel. Being an advisor to lawyers, law firms and legal marketers, I am covering this story because of the fascinating and historic shift and formation of opinion having to do with social and digital media. I have included highlights and comments important to my clients in these areas. There is much more to the story. If you, too, would like to read the entire Packingham v. North Carolina argument before The Supreme Court of The United States, you can find that here.
