The Supreme Court Establishes A First Amendment Framework For Social Media

This week’s Supreme Court opinion is likely to serve as an important guidepost as courts assess the First Amendment implications of efforts to restrict access to the Internet

On June 19, 2017, the Supreme Court of the United States used an unlikely vehicle to expand the scope of First Amendment protection for Internet users. In Peckingham v. North Carolina, speaking for five members of the Court, Justice Anthony Kennedy started with the general principle that the Court has always recognized the “fundamental principle of the First Amendment ... that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” Then, using soaring language that will surely be widely quoted in future cases, he said

While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace--the "vast democratic forums of the Internet" in general, and social media in particular. (citation omitted)

The case arose as a challenge to a North Carolina statute that prohibits registered sex offenders from accessing social media sites. In 2002, Lester Peckingham, who was 21 years years-old at the time, pleaded guilty to taking indecent liberties with a 13 year-old girl. He received a suspended jail sentence and completed a term of probation. Eight years later, Peckingham was convicted of violating the social media statute after a police officer saw Peckingham’s Facebook post joyfully announcing dismissal of a speeding ticket

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!

The Court unanimously found North Carolina’s law to be unconstitutional.

This is the second important Supreme Court opinion addressing the role of the Internet in American life. The first, Reno v. ACLU, was issued in 1997, during the Internet’s dial-up era. Its depiction of the Internet as a medium deserving the same high degree of First Amendment protection as traditional print media played an essential role in the legal framework for the Internet’s evolution over the last two decades.

Justice Kennedy’s Peckingham decision consciously builds upon Reno’s recognition of the Internet as offering “relatively unlimited low-cost capacity for communication of all kinds,” specifically citing how people use Facebook (“users can debate religion and politics with close friends ... or share vacation photos”), LinkedIn (“users can look for work [or] advertise for employees”) and Twitter (“users can petition their elected representatives and otherwise engage with them in a direct manner”) as examples. Justice Kennedy stressed the importance of insuring that the law leave ample room for the further evolution of the Internet’s platform for free expression

The nature of a revolution in thought can be that, in its early stages, even its participants may be unaware of it. And when awareness comes, they still may be unable to know or foresee where its changes lead. Cf. D. Hawke, Benjamin Rush: Revolutionary Gadfly 341 (1971) (quoting Rush as observing: “‘The American war is over; but this is far from being the case with the American revolution. On the contrary, nothing but the first act of the great dramais closed’”). So too here. While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.

Applying these principles to the case at hand, Justice Kennedy recognizes that sexual predation is a grave societal problem and that “inventions heralded as advances in human progress have been exploited by the criminal mind. New technologies, all too soon, can become instruments used to commit serious crimes.” Thus, he said “the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.” However, Justice Kennedy ruled, banishing sex offenders from all social media is an unnecessary, and even counterproductive, overreach

Even convicted criminals--and in some instances especially convicted criminals--might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

There was no dissent in Peckingham. Justice Alito, joined by Chief Justice Roberts and Justice Thomas, wrote a concurring opinion. (Justice Gorsuch was not on the Court when the case was argued, and did not participate.) Using the Washington Post’s website and WebMD as examples, Justice Alito agreed with Justice Kennedy that the "wide sweep [of North Carolina’s statute] precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child." However, he criticized Justice Kennedy’s encomium to the Internet as "undisciplined dicta," legalese for unnecessary language that goes beyond the facts of the case and is not needed to reach the result

The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks. And this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers. I am troubled by the implications of the Court’s unnecessary rhetoric.

Although his dire warnings are overblown, Justice Alito is not wrong that Justice Kennedy’s language is dicta. But the fact that it garnered support from a majority of the Supreme Court means that Justice Kennedy’s opinion is likely to serve as an important guidepost for lower courts as they assess the First Amendment implications of efforts to restrict access to the Internet.

By Andrew Jay Schwartzman.