Is Social Media Protected by the First Amendment?

On February 27, 2017, for the first time, the U.S. Supreme Court discussed social media in the context of the First Amendment, recognizing social media as “a crucially important channel of political communication,” arguably deserving of First Amendment protection.

The discussion occurred during oral argument in the case of Packingham v. North Carolina. The Supreme Court Justices engaged in a vigorous examination of the issue of free speech rights in the context of social media – from Facebook to Twitter, Snapchat to LinkedIn – and the increasingly significant role social media plays in modern society.

Packingham is a First Amendment case brought by a man who was convicted for posting on Facebook, and consequently violating a North Carolina State law that prohibits the use of social media by anyone on the state’s sex offender registry.

Until now, the Supreme Court has offered little guidance on the issue of First Amendment protection for social media. Now the Justices have begun to tackle the issue with more directness and deeper analysis – questioning how broadly this North Carolina social media ban could be construed, noting that many prominent news outlets have interactive and social media features which could also fall under the law. This could have significant implications, and in many aspects of our lives. As Justice Ruth Bader Ginsburg recognized, restricting access to social media would mean “being cut off from a very large part of the marketplace of ideas. And the First Amendment includes not only the right to speak, but the right to receive information.”

The impending decision of the Packingham case could result in a considerable shift in laws restricting or limiting the use of or access to social media. It remains to be seen to what extent this decision might affect various areas of our everyday lives in which social media is concerned, such as employment policies and other rules regarding employees’ social media use.

ABOUT THE AUTHOR: Christopher M. Santomassimo
Chris is a Partner on our Business Counseling and Compliance & Corporate Governance Teams, where he brings his extensive experience, including as a current General Counsel and a Chief Compliance Officer, to assist companies with a wide range of legal and business issues. He specializes in ethics and compliance counseling; corporate investigations; complex tort, products liability and business litigation; product safety and risk management programs; employment law and litigation; and general corporate matters.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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