12 Free Speech and Social Media

In this chapter, we examine the treatment of social media by federal courts. In one sense, social media is a new medium to which old principles apply, such as the existing limits on content discrimination or banning hate speech or incitement. That said, social media also raises new and difficult problems for society, ones in which older principles may be imperfect (but perhaps still the best) solutions. Consider the following concerns:

1. Social media greatly expands the ability of people to communicate but also increases the speed and reach of misinformation or inflammatory speech. In some cases –elections, pandemics, emergencies — such misinformation can be deadly.
2. Social media makes it much easier for individuals to encourage or solicit violence against others.
3. A few social media companies control the majority of social media activity, creating tensions between property rights (such as kicking people off the platform who violate the terms of service) and concerns over monopoly or oligarchy.
4. Because of the small number of large providers, the government may try to pressure these companies, or engage in jawboning, to impact speech without engaging in direct censorship.
5. Government officials have both private speech rights and responsibilities as state actors when managing their social media accounts, blurring the state action doctrine.

In Reno v. ACLU (1997), the Court categorized the Internet as meriting the highest levels of protection alongside newspapers and books, ostensibly because as with these older mediums, individuals intentionally seek out websites to visit. In 2017, the Court similarly stated that social media should receive robust free speech protections, treating social media as an important forum for exchanging views. The first major decision regarding social media, which remains a foundational First Amendment case in this issue area, addresses when the government can restrict individuals from accessing social media platforms. In Packingham v. North Carolina, the Court struck down a North Carolina law that forbid registered sex offenders from accessing any social media website where minors can have accounts or maintain pages (excluding purely commercial sites). While analyzing this law, Justice Kennedy’s opinion clearly stated that social media has become central not only to public discussion, but to life in general.

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Packingham v. North Carolina

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582 U.S. _ (2017)

Facts: a 2008 North Carolina law made it a felony for registered sex offenders to access social media websites that permit minor children to become members or maintain pages. Purely commercial sites or those limited to a discrete service (such as email or photo-sharing) were exempted.

Packingham was a 21-year-old who had had sex with a 13-year-old in 2002. He pled guilty and as a result, was required to register as a sex offender. He thus fell under the 2008 law’s provisions. In 2010, he posted on Facebook after having a traffic ticket dismissed. This action ultimately led to an indictment under the NC law. Packingham appealed in state court, which struck down the law on First Amendment grounds because it wasn’t narrowly tailored. That judgment was reversed by the North Carolina Supreme Court, and the Court granted certiorari.

Question: Does North Carolina’s restriction of social media access to sex offenders violate the First Amendment’s Free Speech Clause?

Vote: Yes, 8-0 (Justice Gorsuch did not participate)

For the Court: Justice Kennedy

Concurring in the judgment: Justice Alito

JUSTICE KENNEDY delivered the opinion of the Court.

In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter. The question presented is whether that law is permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment.

I

A

North Carolina law makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” …

The statute includes two express exemptions. The statutory bar does not extend to websites that “[p]rovid[e] only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform.” The law also does not encompass websites that have as their “primary purpose the facilitation of commercial transactions involving goods or services between [their] members or visitors.”

According to sources cited to the Court, §14–202.5 applies to about 20,000 people in North Carolina and the State has prosecuted over 1,000 people for violating it.

B

In 2002, petitioner Lester Gerard Packingham—then a 21-year-old college student—had sex with a 13-year-old girl. He pleaded guilty to taking indecent liberties with a child. Because this crime qualifies as “an offense against a minor,” petitioner was required to register as a sex offender—a status that can endure for 30 years or more. As a registered sex offender, petitioner was barred … from gaining access to commercial social networking sites.

In 2010, a state court dismissed a traffic ticket against petitioner. In response, he logged on to Facebook.com and posted the following statement on his personal profile:

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!

At the time, a member of the Durham Police Department was investigating registered sex offenders who were thought to be violating §14–202.5. The officer noticed that a “‘J. R. Gerrard’” had posted the statement quoted above. By checking court records, the officer discovered that a traffic citation for petitioner had been dismissed around the time of the post. Evidence obtained by search warrant confirmed the officer’s suspicions that petitioner was J. R. Gerrard.

Petitioner was indicted by a grand jury for violating §14–202.5. The trial court denied his motion to dismiss the indictment on the grounds that the charge against him violated the First Amendment. Petitioner was ultimately convicted and given a suspended prison sentence. At no point during trial or sentencing did the State allege that petitioner contacted a minor—or committed any other illicit act—on the Internet.

Petitioner appealed to the Court of Appeals of North Carolina. That court struck down §14–202.5 on First Amendment grounds, explaining that the law is not narrowly tailored to serve the State’s legitimate interest in protecting minors from sexual abuse… The North Carolina Supreme Court reversed, concluding that the law is “constitutional in all respects.” Among other things, the court explained that the law is “carefully tailored … to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information about minors.”  The court also held that the law leaves open adequate alternative means of communication because it permits petitioner to gain access to websites that the court believed perform the “same or similar” functions as social media, such as the Paula Deen Network and the website for the local NBC affiliate…

The Court granted certiorari, and now reverses.

II

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. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights…

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. Seven in ten American adults use at least one Internet social networking service. One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. According to sources cited to the Court in this case, Facebook has 1.79 billion active users.  This is about three times the population of North America.

Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.”  On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos. On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship. And on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner. Indeed, Governors in all 50 States and almost every Member of Congress have set up accounts for this purpose. In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.”

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… 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.

This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

III

This background informs the analysis of the North Carolina statute at issue. Even making the assumption that the statute is content-neutral and thus subject to intermediate scrutiny, the provision cannot stand. In order to survive intermediate scrutiny, a law must be “narrowly tailored to serve a significant governmental interest.” …

There is … no doubt that, as this Court has recognized, “[t]he sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.” And it is clear that a legislature “may pass valid laws to protect children” and other victims of sexual assault “from abuse.” The government, of course, need not simply stand by and allow these evils to occur…

It is necessary to make two assumptions to resolve this case. First, given the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com. The Court need not decide the precise scope of the statute. It is enough to assume that the law applies (as the State concedes it does) to social networking sites “as commonly understood”—that is, websites like Facebook, LinkedIn, and Twitter.

Second, this opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue. Specific criminal acts are not protected speech even if speech is the means for their commission. Though the issue is not before the Court, it can be assumed that 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…

Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard…

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. 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.

IV

The primary response from the State is that the law must be this broad to serve its preventative purpose of keeping convicted sex offenders away from vulnerable victims. The State has not, however, met its burden to show that this sweeping law is necessary or legitimate to serve that purpose.

It is instructive that no case or holding of this Court has approved of a statute as broad in its reach…

The better analogy to this case iswhere the Court struck down an ordinance prohibiting any “First Amendment activities” at Los Angeles International Airport because the ordinance covered all manner of protected, nondisruptive behavior including “talking and reading, or the wearing of campaign buttons or symbolic clothing.” If a law prohibiting “allprotected expression” at a single airport is not constitutional, it follows with even greater force that the State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture…

JUSTICE ALITO, concurring in the judgment.

The North Carolina statute at issue in this case was enacted to serve an interest of “surpassing importance.” … It makes it a felony for a registered sex offender simply to visit a vast array of websites, including many that appear to provide no realistic opportunity for communications that could facilitate the abuse of children. Because of the law’s extraordinary breadth, I agree with the Court that it violates the Free Speech Clause of the First Amendment.

I cannot join the opinion of the Court, however, because of its undisciplined dicta. 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…

The State’s interest in protecting children from recidivist sex offenders plainly applies to internet use. Several factors make the internet a powerful tool for the would-be child abuser. First, children often use the internet in a way that gives offenders easy access to their personal information—by, for example, communicating with strangers and allowing sites to disclose their location. Second, the internet provides previously unavailable ways of communicating with, stalking, and ultimately abusing children. An abuser can create a false profile that misrepresents the abuser’s age and gender. The abuser can lure the minor into engaging in sexual conversations, sending explicit photos, or even meeting in person. And an abuser can use a child’s location posts on the internet to determine the pattern of the child’s day-to-day activities—and even the child’s location at a given moment…

Because protecting children from abuse is a compelling state interest and sex offenders can (and do) use the internet to engage in such abuse, it is legitimate and entirely reasonable for States to try to stop abuse from occurring before it happens…

A straightforward reading of the text … compels the conclusion that [the law] prohibits sex offenders from accessing an enormous number of websites…

The fatal problem for §14–202.5 is that its wide sweep precludes access to a large number of websites that are most unlikely to facilitate the commission of a sex crime against a child. A handful of examples illustrates this point.

Take, for example, the popular retail website Amazon.com, which allows minors to use its services and meets all four requirements of §14–202.5’s definition of a commercial social networking website… When someone purchases a product on Amazon, the purchaser can review the product and upload photographs, and other buyers can then respond to the review. This information exchange about products that Amazon sells undoubtedly fits within the definition in §14–202.5. It is the equivalent of passengers on a bus comparing notes about products they have purchased…  Amazon allows a user to create a personal profile, which is then associated with the product reviews that the user uploads…

Many news websites are also covered by this definition. For example, the Washington Post’s website gives minors access and satisfies the four elements that define a commercial social networking website…

Or consider WebMD—a website that contains health-related resources, from tools that help users find a doctor to information on preventative care and the symptoms associated with particular medical problems. WebMD, too, allows children on the site. And it exhibits the four hallmarks of a “commercial social networking” website…

As these examples illustrate, the North Carolina law has a very broad reach and covers websites that are ill suited for use in stalking or abusing children… the social exchanges facilitated by these websites occur in the open, and this reduces the possibility of a child being secretly lured into an abusive situation. These websites also give sex offenders little opportunity to gather personal details about a child; the information that can be listed in a profile is limited, and the profiles are brief. What is more, none of these websites make it easy to determine a child’s precise location at a given moment. For example, they do not permit photo streams (at most, a child could upload a single profile photograph), and they do not include up-to-the minute location services. Such websites would provide essentially no aid to a would-be child abuser.

Placing this set of websites categorically off limits from registered sex offenders prohibits them from receiving or engaging in speech that the First Amendment protects and does not appreciably advance the State’s goal of protecting children from recidivist sex offenders…

While I thus agree with the Court that the particular law at issue in this case violates the First Amendment, I am troubled by the Court’s loose rhetoric. After noting that “a street or a park is a quintessential forum for the exercise of First Amendment rights,” the Court states that “cyberspace” and “social media in particular” are now “the most important places (in a spatial sense) for the exchange of views.”  The Court declines to explain what this means with respect to free speech law, and the Court holds no more than that the North Carolina law fails the test for content-neutral “time, place, and manner” restrictions. But if the entirety of the internet or even just “social media” sites are the 21st century equivalent of public streets and parks, then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offenders. May a State preclude an adult previously convicted of molesting children from visiting a dating site for teenagers? Or a site where minors communicate with each other about personal problems? The Court should be more attentive to the implications of its rhetoric for, contrary to the Court’s suggestion, there are important differences between cyberspace and the physical world…

The Court is correct that we should be cautious in applying our free speech precedents to the internet. Cyberspace is different from the physical world, and if it is true, as the Court believes, that “we cannot appreciate yet” the “full dimensions and vast potential” of “the Cyber Age,” we should proceed circumspectly, taking one step at a time. It is regrettable that the Court has not heeded its own admonition of caution.

Content Moderation

Under the state action doctrine, private companies are not limited by the First Amendment in making decisions to moderate or censor content they control. For social media platforms, this extends to expelling individuals who violate the terms of service. Just as you could kick someone using racial slurs out of a gathering at your house, social media platforms can moderate their content to provide a better (and more profitable) experience for users, even if the government could not do the same in the public square. Social media platforms must inevitably engage in some degree of content moderation if they are to remain broadly relevant, as users will abandon the platform if, say, it becomes overrun with pornography, hate speech, fraud, or bots.

At first read, there is no constitutional problem here–social media platforms have property rights, whereas individuals have no right to use any particular private platform. Upon further consideration, however, a problem emerges. If, as Justice Kennedy notes in Packingham, social media has become central to political life, then losing access to such platforms is problematic even if it’s the platforms themselves, rather than the government, that removes one’s access. Framed this way, we now have an important tension between the property or speech rights of the platforms and the need for individuals to have access to the “public square,” even if that square is run by private companies.

It is unusual but not unheard of for courts to treat private actors as public entities. In Smith v. Allwright (1944), the Court held that a “whites-only” Democratic primary election in Texas violated the 14th Amendment even though the Democratic party was a private organization. Because Texas had essentially delegated a key public function to a private entity, that entity was now subject to the Equal Protection clause. Similar decisions have been seen in Marsh v. Alabama (1944), where a business-run “company town” was held subject to the First Amendment, as it was open to the public and took on government functions. In this case, Justice Black said, speech rights should trump property rights. For the most part, though, these exceptions remain rare and courts have been reluctant to expand them. It’s easy to see why: imagine, for example, a ruling that you could not kick a Nazi out of your house for making pro-Nazi speeches because it would violate their right to free speech.

Prior to the 2024 election and the marked shift in social media ownership and norms to the right, the primary axis of conflict in the area of content moderation was between social media platforms and conservatives, who argued they had been de-platformed for their views. In response, both Florida and Texas passed laws that limited the ability of social media platforms to censor speech or deplatform individuals — particularly candidates for office — based on their viewpoints. These laws took the view that rather than being “compilers” of speech that have their own First Amendment rights (such as a newspaper editor who decides what content will be published), social media platforms are instead common carriers or “dumb pipes” that do not engage in their own expressive activity.

 

Emerging Problems

Two emerging problems for free speech are noted here, though they haven’t yet led to specific cases, and may not, given current doctrine.

First, the internet, and social media, in particular, have dramatically lowered barriers to collective action. In “Federalist #10,” Madison famously argued that a large nation would have a multiplicity of interests that would not easily be able to coordinate across long distances. Potentially harmful factions (defined by Madison as a group whose aims would harm the public as a whole) were thus limited in their ability to organize, and individuals with anti-social or dangerous views would be geographically isolated.

This is no longer true. Admittedly, lowering barriers to collective action can be good or bad—social media, for example, can make it easier for individuals to organize or protest on behalf of their interests or rights, in the finest tradition of democracy. At the same time, however, social media also greatly enables conspiracy theorists and violent radicals. It’s hard to imagine the January 6^th, 2021 attacks on Congress occurring without social media, which allowed insurrectionists to organize their efforts despite being dispersed throughout the country.

Second and similarly, the explosion of speech on social media has led to what Eugene Volokh of UCLA Law School initially termed “cheap speech.” Volokh—writing prophetically in 1995—predicted that the technological revolution promised by the internet would lower the costs of speaking, granting more power to individuals while reducing the power of gatekeepers such as journalists or publishers. This change, he said, would increase democratize speech, leading to increased diversity of views and greater availability of information to everyone.

While Volokh saw this development as a good one on balance, similar to Justice Kennedy’s optimism in Packingham, the problems he saw may have become more dangerous than he initially predicted. As Rick Hasen of the University of California at Irvine has written, cheap speech has not only decimated the business model of local newspapers (which in turn may enable local corruption or the rise of propaganda in its place), but has created a “media fire hose” of information, much of it falsehood, propaganda, or conspiracy theory. Hasen worries that these developments have weakened trust in the media and government, increased polarization, and made individuals more likely to double down on believing false information.

To use First Amendment analogies, cheap speech has weakened, rather than strengthened, how well the marketplace of ideas functions. The old gatekeepers of the media were biased, of course, but they had greater incentives (threat of lawsuits, profits, or the pursuit of mainstream respectability) to maintain barriers against conspiracy theorists or the purveyors of flatly false information. Without them, many more citizens seem to have adopted positions unsupported by facts.

There are no obvious solutions to these problems, particularly ones that do not violate current First Amendment doctrine. The old journalism model is dead—going forward, news media will rely either on subscribers or some sort of public/private subsidization to survive. The government cannot censor “bad” viewpoints online, nor can it simply ban lying.

Private companies, of course, can ban those individuals who spread messages or lies contrary to their terms of service, although this raises some unconformable questions about how much power particular social media companies wield in shaping our discourse. There may simply be a tradeoff here: speech without gatekeepers may undermine the broader goals of free speech, while enabling gatekeepers to police the worst of speech grants such institutions the power to shape what can be said.