In an 8-0 decision delivered by Justice Kennedy, the Supreme Court held that a North Carolina law banning registered sex offenders from accessing social-networking websites like Facebook and Twitter was a violation of the First Amendment.
The statute at issue made it a felony offense for registered sex offenders to access a “commercial social networking” website where the sex offender “knows that the site permits minor children to become members or to create or maintain personal Web pages.” The petitioner in this case was convicted for posting a celebratory message on Facebook about a traffic citation that was dismissed, even though there was no allegation that he had contacted a minor or engaged in any illicit acts on the internet.
The Court acknowledged that the State had a valid governmental interest in protecting children from sexual abuse, but reasoned that the statute was not specific or narrowly tailored and was “unprecedented in the scope of First Amendment speech it burdens.” Instead of specifically prohibiting sex offenders from “engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor,” the State foreclosed all social media use by sex offenders. Indeed, the statute’s broad prohibition could be construed to bar sex offenders from accessing even websites that provide legitimate benefits, like LinkedIn or news sources.
Justice Kennedy stressed the importance of the internet and social media as a vehicle for vital First Amendment speech, noting that it “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”
This case is one of the first in which the Supreme Court has discussed the relationship between the First Amendment and social media and the internet, and it can provide some useful guidance to employers when considering employees’ social media use. Since the internet is recognized as a quintessential forum for exercising First Amendment rights, employers should take care not to impinge on the free speech of employees by drafting overly burdensome social media policies.