Should Criminals Be Banned from Social Media? The Supreme Court Says No.

The first amendment of the United States Constitution is about Freedom of Speech and Expression – an often gray area that has caused many legal trials to win and lose cases. It is an extremely difficult area to categorize in the morals of black and white or right and wrong. Add to this complexity, the inception of social media and you have a catastrophe. What constitutes freedom of expression on social media? Bragging about sexual advances, criminal acts, offensive statements against a group or a minority etc are all the vices of Freedom of Speech on an uncontrolled medium. Facebook has been trying to curb expressions that are hurtful and offensive, often facing criticism for some of the stance it takes. Twitter has done the same, but once more, these organizations are facing yet another question blurring the line between freedom of speech and criminal intentions. This time though, the Supreme Court has cleared the query. You cannot ban people on the internet, no matter what they’ve done.

The Backdrop of the Verdict

Ever since the Internet gained popularity with video streaming and open access, there has a rise in child pornography, criminally violent videos, and internet specific crimes as frauds, scams, viral attacks and so on. In the wake of these crimes, the fundamental question was should the perpetrators of the crimes be banned from the internet completely? This question gained prominence in 2002 when a federal appeals court overturned the ruling against the banning of a convicted child pornographer to use the internet or the computer. According to the court, it was, ‘an unfair encroachment on his liberties,’ to ban him from using a fundamentally important gadget as the computer or the internet. It has become so much of a part of our lives that banning it completely would be obtrusive even to criminals. The court cited the example of a telephone, pointing that even though people use telephones to commit crimes, the Court has never banned the use of a telephone. The same logic applies to the computer and the internet.

North Carolina vs Lester Packingham

In the case of the child pornographer, Lester Packingham was a convicted offender in 2002, but in 2010, a local police officer saw Lester’s social media post bragging about a dismissed traffic ticket. The officer charged Lester with the North Carolina law on using social media as a sex offender. The NC law for sex offenders states that ‘it is unlawful for a sex offender who is registered …to access a commercial social networking site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages on the commercial social networking site.”

The case thus became North Carolina Vs Lester Packingham and went on for a long time with different courts upholding the law following NC’s arguments that the law was passed to, ‘“confront the threat sexual predators pose to children.” However, Lester’s lawyers argued that the law was too broad and unrelated especially since Lester was not involved in communication with any minor. He was not accused of viewing the profile of a minor rather used Facebook to communicate with his friends and family.

The Supreme Court Disagrees

Finally, on June 19th, 2017, Justice Kennedy delivered the Supreme Court’s opinion which considered the NC law as a violation of the First Amendment as it is not narrowly tailored. It also claims that courts need to proceed with social media cases with caution. In a written opinion, Justice Kennedy states,

“Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.” Reno, supra, at 870. 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. See Brief for Electronic Frontier Foundation 15–16. 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.”

However, while stating this, the judge advises states to bar more specific and narrowly tailored actions that do not violate the pointers of the First Amendment.

The crux of the opinion lies in the court believing that, ‘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.’ The opinion further stressed the importance of social media and the internet by claiming that 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.’

While some of the judges agree with Justice Kennedy’s opinion, some are skeptical about the scope of the opinion claiming it to be musings and rhetoric that could have harmful implications. It would be interpreted as, ‘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.’

As of now, judgment has been reversed and the case remanded. Judge Ginsburg, Breyer, Sotomayer and Kagan filed an opinion concurring in the judgment. It should be interesting to note though that the ruling has further complicated matters and may cause sexual offenders to freely use the internet for criminal intentions with no consequences at the end.

Farah tries to keep up with the fast-paced tech world by writing about it. She covers latest tech news and writes informative pieces to help her readers make informed decisions about their tech preferences.