Do You Have a Constitutional Right to Use Facebook and Twitter? Supreme Court Weighs In

Drew Angerer/Getty Images
Drew Angerer/Getty Images

A North Carolina law that bars registered sex offenders from using Facebook, Twitter and similar sites is up for debate in the U.S. Supreme Court, and Monday’s argument turned into a discussion of just how much social media has transformed American civic discourse.


The New York Times reports that the justices demonstrated familiarity with the major social networks, and their remarks suggested that they may strike down the North Carolina law under the First Amendment.

Justice Elena Kagan noted that President Donald Trump, every governor and every member of Congress has a Twitter account.

“So this has become a crucially important channel of political communication,” Kagan said. “And a person couldn’t go onto those sites and find out what these members of our government are thinking or saying or doing.”

Under the North Carolina law, it is illegal for registered sex offenders to use websites that allow the exchange of information and do not limit their membership to adults.

Justice Anthony M. Kennedy said social media has become the public square and a place for discussion and debate.

“The sites that Justice Kagan has described and their utility and the extent of their coverage are greater than the communication you could have ever had, even in the paradigm of public square,” Kennedy said.


Justice Sonia Sotomayor said the North Carolina law has economic consequences as well.

“Take something like LinkedIn, which many, many people in our society today are looking for jobs there, but high school students are permitted to look for jobs and to post their personal data on that site,” Sotomayor said.


Kennedy added that any number of free-speech doctrines doomed the law.

Justice Stephen G. Breyer told Robert C. Montgomery, a lawyer for the state, that in attempting to protect children from sexual predators, the state could have drafted a much narrower law.


“The state has a reason?” Breyer asked. “Yeah, it does. Does it limit free speech? Dramatically. Are there other, less restrictive ways of doing it? We’re not sure, but we think probably, as you’ve mentioned some. OK. End of case, right?”

From the Times:

The law was challenged by Lester Packingham, who had pleaded guilty in 2002 to taking indecent liberties with a minor when he was a 21-year-old college student. He received a suspended sentence and two years’ probation and was made to register as a sex offender.

Mr. Packingham came to the attention of the authorities in 2010, when he wrote on Facebook about having a traffic ticket dismissed. “God is good,” he wrote.

A North Carolina appeals court ruled that the law “arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal” of protecting minors.

In a 4-to-2 ruling, the North Carolina Supreme Court reversed the appeals court’s decision, saying that Mr. Packingham’s Facebook post was not entitled to heightened First Amendment protection because it was conduct rather than speech.


Montgomery argued that the state of North Carolina is entitled to limit Packingham’s speech and said that the law left sex offenders with plenty of other ways to exercise their First Amendment rights.

“It’s not the entire internet that is being taken away from these offenders,” Montgomery said. “They can still have their own blog. They can read blogs. They can do podcasts. They can go to”


Montgomery also said that the state had tried to write the law narrowly and to address the danger of lurking predators quietly harvesting personal information about minors.

Kagan said that the distinctions the North Carolina law drew made no sense.

“So you mean that there’s a constitutional right to use Snapchat, but not to use Twitter?” she asked.


More from the Times:

Justice Breyer asked Mr. Montgomery for any First Amendment precedent that allowed such a broad suppression of speech. The lawyer cited a 1992 decision, Burson v. Freeman, in which the Supreme Court upheld a 100-foot buffer zone around polling places.

Justice Kennedy was not impressed. “I think that does not help you at all,” he said, as the buffer zone was limited in size and applied to everyone. “You could have all the political speech in the world” outside the zone, he added.

Justice Kagan said a restriction on using social media was quite different. “How many people under 30 do you think don’t use these sites to get all their information?” she asked. “Under 35? I mean, increasingly, this is the way people get all information.”


Justice Samuel A. Alito Jr. said, “I know there are people who think that life is not possible without Twitter and Facebook.”

You really know us, Justice Alito.

Read more at the New York Times.

News Editor for The Root. I said what I said. Period.



They are not deciding if you have a constitutional right to Twitter. You don’t, it’s private property, and Twitter will remain free to do as it pleases on its own individual platform regardless of the decision.

They are deciding if the government can be the one to restrict your right to use whatever social media platform you prefer and will have you.

It’s an incredibly important difference. I just felt I’d throw that out there, before morons start trying to misapply these statements whenever they get banned for saying something stupid online.