Is Using Social Media Your Constitutional Right?

7.28.17 IN: Public

Can you imagine not being allowed to use social media? Not being able to keep up with celebrities on Instagram? Follow your favorite news sites on Twitter, or connect with old friends on Facebook? The good news is, you don’t have to imagine such a thing – the Internet is here to stay, and freely accessible to all. Some states, however, have limits on this right depending on your criminal background. For North Carolina, this changed in June when the Supreme Court of the United States declared laws barring such access to the Internet an unconstitutional intrusion upon free speech.

Yes, you read that right. Using social media is ultimately a constitutional right under the First Amendment. But how did such an odd issue come before the Supreme Court? Lester Packingham lives in North Carolina and is a registered sex offender. Years after his initial crime and registration on the list, he used Facebook to post a message thanking God for getting him out of a traffic ticket. The post was discovered by the police department, and because it was an illegal act, Packingham was convicted and given a suspended prison sentence.

The relationship between social media and being a sex offender was argued by supporters as protecting minors who have access to social media, and registered offenders who were potentially more likely to publish inappropriate content targeting minors or seek to contact them. Packingham appealed his conviction on First Amendment grounds, and the case made it all the way to the US Supreme Court. After oral argument, the Court found in favor of Packingham, agreeing that the law “enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.”

The issue for the Court was the prohibition of a group of people from using one of the most broad, informative forms of articulating speech on the Internet. Social media has become so popular and widely used that it can be used for many legitimate purposes. Not allowing registered sex offenders to use it effectively keeps them away from news outlets and keeping up with current events, looking for employment, and expressing themselves in a public forum. The Court directly compared the forum available on social media to the traditional public square. Just as the First Amendment protects a person’s right to listen and speak to a tangible public, the same right extends to the “virtual” public square that is the Internet. The Court said these rights should not be restricted because of one act committed in the past had no substantive bearing on the present situation.

A term you may hear about (usually by lawyer-types) in this context is “strict scrutiny.” In non-legalese, the rights of the people that are specifically spelled out in our Constitution cannot be impeded by state or federal governments without offering the judicial branch a compelling reason for a law to control an activity that cannot be accomplished by any other means. Free speech guaranteed by the First Amendment has long been considered by the Supreme Court to be one of those largely untouchable rights. In this case, a past crime that the court believed was at best tangentially related to a government interest (keeping sexual predators away from minors) did not meet this standard and thus improperly infringed on the free speech rights under the First Amendment.