Advertising Law Blog

Is there a constitutional right to social media? The ongoing dialogue surrounding First Amendment concerns born out of the Internet and social media was the focus of Supreme Court oral arguments on Monday, February 27, 2017. Discussing a North Carolina law that prohibits registered sex offenders from participating in social media sites like Facebook and Twitter, the justices’ comments seemed to suggest a likelihood that they would strike down such a law on First Amendment grounds.

Lester Packingham, a registered sex offender who pleaded guilty to taking indecent liberties with a minor when he was 21 in 2002, challenged the validity the law after attracting the attention of authorities following a post on Facebook. In this post, Mr. Packingham noted “God is good” after he narrowly avoided a traffic ticket. Mr. Packingham’s attorney, David T. Goldberg, distinguished common restrictions placed on ex-felons after they have served their sentence, such as voting restrictions and limited or completely restricted access to firearms, from the First Amendment violations that consequent from the North Carolina law.

The justices opined on the distinct and unavoidable role that social media sites have in informing the community contemporarily. Justice Kagan noted the significance of such sites, stating “… these sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights.” Additionally, Justice Kagan highlighted the role of social media in the world of politics, noting the President Trump, every governor and member of congress has a Twitter account, and that social media has in turn become a “crucially important channel of political communication” between elected representatives and their constituents. Further, Justice Sotomayor noted that many businesses are now using social media sites as an advertising platform.

During the oral arguments, the justices questioned the breadth of the North Carolina law, suggesting that the aim of protecting children from sexual predators could be achieved with a more narrowly tailored regulation that did not infringe so heavily upon First Amendment rights. Justice Breyer questioned the approach of North Carolina to “cut off” the speech of ex-felons, who have been punished, on the basis that they might reoffend, seemingly suggesting that this is an insufficient justification imposing on First Amendment rights.

TAKEAWAY: Laws aiming to restrict certain populations access to social media sites may have an impact on businesses that use these sites for commercial advertising purposes.