A US Supreme Court discussion of free speech and social media got comically postmodern

Contemplating a constitutional right to tweet.
Contemplating a constitutional right to tweet.
Image: Reuters
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During oral arguments this week in a case before the US Supreme Court, the justices mostly seemed to agree that access to social media is worthy of constitutional protection.

And why shouldn’t it be? The web, and specifically social media, is where civic life happens now. As justice Elena Kagan put it, “Everybody is on Twitter.” (She was referring specifically to people in US government—senators, governors, the president.)

Kagan also noted that 50 million Americans access social media every week to express their faith, and that pretty much anyone under 35 discovers news on sites like Facebook, saying, “These sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights, haven’t they?”

Kagan and her fellow justices were hearing arguments in Packingham v. North Carolina, a case challenging a state law limiting individual social media access for violating freedom of speech as guaranteed by the First Amendment of the US Constitution. The discussion touched on comically postmodern questions‚ like the distinction between Snapchat and Twitter, and what precisely constitutes an online profile. The transcript to the Feb. 27 high court session would have seemed like science fiction to legal scholars of the pre-digital age.

Justice Samuel Alito quipped, “Now, I know there are people who think that life is not possible without Twitter and Facebook and these things, and that 2003 was the dark ages.” He wondered whether these sites are really vital to American society.

Justice Anthony Kennedy appeared to think so. “Well, it seems to me that the sites… and their utility and extent of their coverage are greater than the communication you could ever have, even in the paradigm of public square,” he said.

The justices must decide if the First Amendment right to freedom of speech extends to the internet, and if so, to what extent the government can limit an individual’s online access. The individual here is Lester Packingham, who pled guilty to statutory rape when he was 21, served his sentence, and remains a sex offender for life.

Under North Carolina law, he is forever prohibited from accessing commercial social media. But in 2010, Packingham signed up for Facebook, using an alias (his first and middle name). He was caught after commenting on a traffic ticket dismissal, and charged with a felony. Packingham challenged the law as violating his First Amendment right to freedom of speech.

To be clear, freedom of speech here does not refer to actual speaking—his offense was signing up for a Facebook account, not anything he said. Still, First Amendment protections extend to accessing information (for instance, the speech of government representatives who use Twitter).

The state may be able to infringe on a constitutionally protected right, but it must show that it has a compelling interest in doing so, and that it’s doing so in the least restrictive way. North Carolina’s statute appears to fail the second part of this two-pronged legal test.

The state admitted it’s infringing on speech implicated by the constitution, and claims to be compelled to do so to protect children from predators. Limiting access to social media is the least restrictive way to achieve that goal, North Carolina senior deputy attorney general Robert Montgomery argued. But the justices disagreed, pretty heartily.

Among other complaints, the law’s demands seemed to the justices to be too broad and unclear.

“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,” said justice Stephen Breyer. Still, that’s not enough to support infringing free speech.

Breyer asked if a state may prohibit “convicted swindlers” from going on Facebook or sites where money is discussed. “[Y]ou know, pretty soon, you’re going to have everybody convicted of different things not being able to go anywhere and discuss anything,” he observed.

North Carolina’s law is also difficult to interpret. The state makes murky distinctions, restricting only sites with certain types of user profiles linking to other users. Twitter is taboo but the New York Times online is not, for example, which bothered justice Sonia Sotomayor.

She proffered a print-out of the online newspaper showing users commenting and displaying profile pictures, asking what the difference was. Montgomery said in the state’s defense that Facebook will reveal whether a kid likes puppies and has divorced parents, while a newspaper user profile or even school websites—which are legally accessible to sex offenders under the challenged law—won’t provide personal details.

Again, the court was dubious. Justice Ruth Bader Ginsberg said:

Even if the New York Times is not included, 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.

With this statement, she revealed her position on social media’s importance in American society, a view that seemed widely shared on the bench. We’ll find out what the court really thinks sometime around May when opinions are written. Packingham could prove significant, establishing the place of Facebook and its ilk in American life and law.