On June 19, 2017, the U.S. Supreme Court ruled that a North Carolina law prohibiting registered sex offenders from accessing social media sites was unconstitutional.  This post will review the case and discuss a few takeaways for companies.

The Case

In 2002, a North Carolina resident entered a guilty plea for a crime that require he register as a sex offender.  In 2008, North Carolina enacted a law that made it felony for registered sex offenders to access social media sites, which the law defined as having four elements:

  1. The site must be operated by a person that “derives revenue from membership fees, advertising or other sources related to the operation of the Web site.”
  2. The site facilitates “the social interaction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.”
  3. The site allows “users to create Web pages or personal profiles that contain information such as the name or nickname, . . . photographs, . . . or other personal information, . . . and links to other personal Web pages on the commercial social networking Web site of friends or associates.”
  4. The site must provide users with “mechanisms to communicate with other users.”

The law contained exceptions for sites that provided only one of the following:  photo-sharing, e-mail, instant messaging, or chat room or message board platforms.

North Carolina has prosecuted more than 1,000 people for violating that law, including the plaintiff in this case. He posted on Facebook some gleeful comments in 2010 when a court dismissed his parking ticket.

He challenged the 2008 law at his trial, claiming that it violated his First Amendment free speech rights.  The trial court rejected his motion, and he was convicted.  The state appeals court, however, agreed with the plaintiff that it violated the First Amendment because the law was not narrowly tailored to serve North Carolina’s legitimate interest in protecting minors from sexual abuse.  North Carolina’s highest court reversed, and upheld the conviction.

The Supreme Court Opinion

The U.S. Supreme Court unanimously agreed to reverse the judgment of the North Carolina Supreme Court. The U.S. Supreme Court held that, although North Carolina had a compelling interest in preventing sexual abuse of children, the North Carolina law was not narrowly tailored to serve that legitimate interest.  The Court found that the North Carolina law prohibited registered sex offenders from accessing social media sites that had little likelihood of permitting the offender to contact a minor or learn information about a minor.

Five of the eight Justices (Justice Gorsuch did not participate) provided some comments on social media’s importance:

  • “Social media allows users to gain access to information and communicate with one another on any subject that might come to mind.”
  • “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.”
  • “In short, social media users employ these websites to engage in a wide array of protected First Amendment activity.”

The three-member concurrence did not join in this commentary.

The majority cautioned that “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.”

The majority of observed that this case was one of the first where the Court addressed the relationship between the First Amendment the “modern Internet.” The majority noted the concern that new technologies can be used for criminal purposes:

For centuries now, inventions heralded as advances in human progress have been exploited by the criminal mind. New technologies, all too soon, can become instruments used to commit serious crimes. The railroad is one example, and the telephone another. So it will be with the Internet and social media.

[citations omitted]. Yet, the majority found, that “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.” Because the government “may not suppress lawful speech as the means to suppress unlawful speech,” [citation omitted] the North Carolina law was unconstitutional.

Considerations for Companies

Although this case involved a criminal matter, it raises a few points for companies to consider:

  • Many companies participate in social media sites. Many popular social media platforms permit anyone who is age 13 or over to become members. (In the U.S., many additional requirements are imposed by the Children’s Online Privacy Protection Act for social media sites that are directed towards and/or have members who are children under 13.) If states start to enact more narrowly tailored laws, which the Supreme Court did not foreclose, companies whose social media pages permit users aged 13 to 17 (minors, under state law) could potentially find themselves involved in criminal cases, brought in by either the prosecutor or the defense, regarding whether the site met that state’s definition of a prohibited social media site. On the other hand, if a company can limit access to its site to users who are 18 and over, that limitation would help avoid these potential issues.
  • Many regulators are seeking assistance from private companies regarding new technologies. The Supreme Court majority’s comments regarding new technologies being used for serious crimes, yet providing fundamental lawful First Amendment free speech, may provide a useful perspective on new technologies such as cryptocurrency, blockchain (distributed ledger technology) and autonomous vehicles.Readers wishing to learn more about these new technologies can visit our publications:

Autonomous vehicles (driverless cars)

Blockchain (distributed ledger technologies)