The First Amendment and Social Media

Microphone in front of audience.The U.S. Supreme Court referred to its decision in Packingham v. North Carolina, 137 S. Ct. 1730 (2017) as one of the first cases “this Court has taken to address the relationship between the First Amendment and the modern internet.” In the case, the Court, citing the First Amendment’s Free Speech Clause, struck down as unconstitutional a North Carolina statute that made it a felony for a registered sex offender to use social media websites such as Facebook and Twitter. The Court also made several significant statements about social media and free speech.

The Supreme Court initially noted that “a fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” With regard to social media, the Court noted that although users of websites such as Facebook, Twitter and LinkedIn “engage in a wide array of protected First Amendment activities,” the First Amendment does permit states to “enact specific, narrowly tailored laws” that could limit a person’s use of social media. However, the Court also held that a state could not enact a broad law which would “foreclose access to social media altogether” and prevent a user from engaging in “the legitimate exercise of First Amendment rights.”

Packingham may be one of the first cases in which the Supreme Court considered issues involving social media, but it will not be the last. With cases such as Knight First Amendment Inst. at Columbia Univ. v. Trump (See Trending Law Blog, June 14, 2018) and Morgan v. Bevin, 298 F. Supp. 3d 1003 (E.D. Ky. 2018), winding their way through the courts, no doubt there will be many other cases involving how social media impacts the law. Indeed, there are already state and federal employment, divorce and privacy cases pending where social media is involved. Packingham is only just the beginning.