Is Twitter an essential medium for political expression in our current era? Certainly, if you ask our President, who can find no area of US policy that cannot be conducted in just 140 characters, he would say yes. But does the First Amendment protection of free expression also protect your right to engage on social media?
On Monday, February 27, 2017, the Supreme Court heard oral arguments in Packingham v. North Carolina. This case, which deals with a North Carolina law restricting the social media access of registered sex offenders, has the potential to be a landmark ruling on what the First Amendment means in the digital age.
In 2010, the plaintiff, Lewis Packingham, successfully had a traffic ticket dismissed. He celebrated the occasion by posting a Facebook status:
Man God is Good! How about I got so much favor they dismiss the ticket before court even started. No fine, No court costs, no nothing spent. . . . Praise be to GOD, WOW! Thanks JESUS!
While this might seem like an innocuous incident unlikely to be the source of debates before the nation’s highest court, eight years earlier, when he was 21 years of age, Packingham had pled guilty to taking “indecent liberties with a minor.” As a result, Packingham was added to the sex offender registry. Under North Carolina law it is a felony for a registered sex offender to use a commercial social networking website which does not restrict its usage to adults. When the police discovered the offending Facebook post they tracked down the man who posted it (Packingham had used a pseudonym), applied for a warrant, and searched Packingham’s home. Packingham was charged and convicted of a felony.
Yet, during Monday’s hearing the Supreme Court repeatedly expressed skepticism at the constitutionality of Packingham’s conviction. The justices noted the importance of social media to expression, noting that websites like Facebook and Twitter were a contemporary form of the public square. As Justice Elena Kagan pointed out, not only did the Tweeter-in-Chief make use of social media to communicate with the public, but
all 50 governors, all 100 senators, every member of the House has a Twitter account. So this has become a crucial — crucially important channel of political communication.
This isn’t just a case about sex offenders, but a case with broad implications about our First Amendment rights. Social media isn’t just for cat pictures, it is where individuals and social movements exchange information, points of view, and arguments, as well as agitate and organize for change. Being cut off from social media means having your ability to participate in our democratic society severely curtailed. And as at least one justice noted, it isn’t just political expression that would be curtailed by this law. Under this law an individual like Packingham, would never be able to access LinkedIn, which many would find essential for finding employment in the modern era.
The Bill of Right Defense Committee/Defending Dissent Foundation realizes the importance of our virtual public square. That is why we joined an amicus brief filed by the Electronic Privacy Information Center along with thirty technical expert and legal scholars, and five civil liberties and privacy organizations arguing that the court should overturn North Carolina’s law.
Based on Monday’s arguments, it would seem many on the Supreme Court share our concerns.