A Constitutional Right to Facebook and Twitter? Supreme Court Weighs In
A Supreme Court argument on Monday about whether North Carolina may bar registered sex offenders from using Facebook, Twitter and similar services turned into a discussion of how thoroughly social media have transformed American civic discourse.
The justices’ remarks, which indicated easy familiarity with the major social media services, suggested that they would strike down the North Carolina law under the First Amendment.
Justice Elena Kagan said that President Trump, every governor and every member of Congress has a Twitter account.“So this has become a crucially important channel of political communication,” she said. “And a person couldn’t go onto those sites and find out what these members of our government are thinking or saying or doing.”
The North Carolina law makes it a crime for registered sex offenders to use many commercial websites that allow the exchange of information and do not limit their membership to adults.
Justice Anthony M. Kennedy said that social media sites had become, and in some ways had surpassed, the public square as a place for discussion and debate.
“The sites that Justice Kagan has described and their utility and the extent of their coverage are greater than the communication you could have ever had, even in the paradigm of public square,” Justice Kennedy said.
The North Carolina law has economic consequences, too, Justice Sonia Sotomayor said.
“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 personal data on that site,” she said.
Justice Kennedy mused that any number of free-speech doctrines doomed the law.
“Elizabeth Barrett Browning,” he said, before quoting the poet: “Let me count the ways.”
Justice Stephen G. Breyer told Robert C. Montgomery, a lawyer for the state, that it could have drafted a much narrower law to protect children from sexual predators. Justice Breyer sketched out his analysis.
“The state has a reason?” he asked. “Yeah, it does. Does it limit free speech? Dramatically. Are there other, less restrictive ways of doing it? We’re not sure, but we think probably, as you’ve mentioned some. O.K. End of case, right?”
The law was challenged by Lester Packingham, who had pleaded guilty in 2002 to taking indecent liberties with a minor when he was a 21-year-old college student. He received a suspended sentence and two years’ probation and was made to register as a sex offender.
Mr. Packingham came to the attention of the authorities in 2010, when he wrote on Facebook about having a traffic ticket dismissed. “God is good,” he wrote.
A North Carolina appeals court ruled that the law “arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal” of protecting minors.
In a 4-to-2 ruling, the North Carolina Supreme Court reversed the appeals court’s decision, saying that Mr. Packingham’s Facebook post was not entitled to heightened First Amendment protection because it was conduct rather than speech.
Mr. Montgomery did not defend that reasoning at Monday’s argument in the case, Packingham v. North Carolina, No. 15-1194. He argued instead that the state was entitled to limit Mr. Packingham’s speech.
Some justices noted that criminal convictions can have lasting consequences. “Some states prohibit ex-felons from voting,” Justice Ruth Bader Ginsburg said. “Some states and the federal government prohibit keeping and bearing arms. Those are constitutional rights.”
David T. Goldberg, a lawyer for Mr. Packingham, said those restrictions had a basis in history and logic. They were nothing like “taking away people’s First Amendment rights,” he said.
Mr. Montgomery said the North Carolina law left sex offenders with plenty of other ways to exercise their First Amendment rights. “It’s not the entire internet that is being taken away from these offenders,” he said. “They can still have their own blog. They can read blogs. They can do podcasts. They can go to nytimes.com.”
Four justices asked whether The New York Times’s website would in fact be covered by the law, and the argument concluded without a clear answer.
“Even if The New York Times is not included,” Justice Ginsburg said, “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.”
Justice Kagan agreed. “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,” she said.
Justice Kagan added that the law had curious features. “Some of what’s exempted by the law seems, I have to say, some of the most dangerous stuff,” she said, mentioning exceptions for “any website that provides only a chat room or only photo sharing.”
Mr. Montgomery said the state had tried to write the law narrowly and to address the danger of lurking predators quietly harvesting personal information about minors. But Justice Kagan said the distinctions it drew made no sense.
“So you mean that there’s a constitutional right to use Snapchat, but not to use Twitter?” she asked.
Justice Breyer asked Mr. Montgomery for any First Amendment precedent that allowed such a broad suppression of speech. The lawyer cited a 1992 decision, Burson v. Freeman, in which the Supreme Court upheld a 100-foot buffer zone around polling places.
Justice Kennedy was not impressed. “I think that does not help you at all,” he said, as the buffer zone was limited in size and applied to everyone. “You could have all the political speech in the world” outside the zone, he added.
Justice Kagan said a restriction on using social media was quite different. “How many people under 30 do you think don’t use these sites to get all their information?” she asked. “Under 35? I mean, increasingly, this is the way people get all information.”
Justice Samuel A. Alito Jr. did not seem ready to concede that. But, he said, “I know there are people who think that life is not possible without Twitter and Facebook.”