Social Media and the First Amendment
The First Amendment does not protect your right to be a jackass on Facebook or any other social media site.
Let’s review. The First Amendment reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
In plain English, what this says is that Congress, and by extension the various state governments, may not pass and enforce any legislation that:
- names a national religion;
- prevents people from practicing whatever religion they please and/or punish them for doing so;
- restricts people from saying whatever they want to and/or punish them for doing so;
- restricts the press from saying whatever it wants to and/or punish it for doing so;
- restricts people from gathering together publicly in groups for peacful purpose and/or punish them for doing so; or
- restricts people from holding the government(s) accountable for their actions and/or punish them for doing so.
I’m going to focus on items 3 and 5 as they apply to social media.
On February 27, 2017, while hearing arguments in its review of Packingham v. North Carolina, the U.S. Supreme Court discussed for the first time the First Amendment and how it applies to social media. North Carolina had enacted a law that prohibited the use of Facebook and other social media outlets by anyone on its sex offender registry. Lester Packingham Jr., a person on that registry, was arrested by the State of North Carolina for posting on Facebook about a subject acceptable under Facebook’s Terms of Use. He subsequently sued the State of North Carolina, complaining that the North Carolina law restricting his access to Facebook abridged his First Amendment rights, specifically those pertaining to free speech and tangentially free assembly.
Recognizing that social media outlets like Facebook have become virtual gathering places where the public discusses all manner of subjects including political and religious ones, the Supreme Court agreed that access to and posting on social media sites does constitute a legitimate exercise of First Amendment rights. Because of this interpretation, neither the Federal nor the various state governments may uniformly and arbitrarily bar access to and use of social media sites like Facebook. This doesn’t mean that a Constitutional right to use Facebook exists; it simply means that North Carolina’s law was too broad and failed to constrain itself to the behaviors they were seeking to prevent.
Interestingly enough, some social media sites are voluntarily starting to uphold these rights in regards to accounts operated by government officials – witness last week’s Twitter reversal of the blocking of several users by the RealDonaldTrump account, in response to a ruling by the United States District Court for the Southern District of New York.
However, this decision by the Supreme Court in Packingham v. North Carolina does not set precedent on what private companies and individuals themselves may do in the context of social media. Facebook, Twitter, LinkedIn et. al. all have Terms of Service which are accepted when an account is created, and those companies ARE free and fully entitled to exercise any and all restrictions set forth in those terms. Similarly, individual users of those social media sites have the right to exercise any and all privileges they hold in regards to their user space, as long as that usage is congruent with the Terms of Service they agreed to.
In other words, social media sites are fully entitled to kick users out for being stupid – and users, such as myself, are free to block users and delete commentary on spaces which we administer.
The First Amendment protects you from government retribution for your speech and religious practice. It does not protect you from the social consequences of your sociopathic behavior on social media.
