Regulation: Social Media Is Not a Right

February 20, 2019

Will this ruling push more social-media bad actors onto encrypted communications? Nextgov reports, “A California Court Finds Social Media Posts Aren’t a First Amendment Right.” The headline is a tad inaccurate, I’m afraid. The appeals court ruling actually places a rational limit on that Supreme-Court affirmed right (think of the “fire in a crowded theatre” example.) In fact, the case involved a juvenile on probation who was apparently inclined to brag about his crime. Reporter Ephrat Livni writes:

“Basically, it’s true that AA has the right to speak freely. But his freedom is legally curtailed by probation conditions designed to rehabilitate him and protect the victim. The court noted that his social media posts could endanger the victim in this case and that there were plenty of other ways AA could communicate, including email, phone, in person, and via written correspondence. To the extent that AA’s case seems to contradict the conclusions about free speech and social media in Packingham, it’s notable that the Supreme Court case involved a North Carolina law that made it a felony for sex offenders to have any social media presence at all, indefinitely. In this juvenile case, however, AA was only barred from posting about his offense and only for the duration of his probation.”

So the perpetual dance between freedom and protection continues. Livni also notes that “AA” claimed his attorney was at fault for failing to object to the prohibition in the first place, but that plea was dismissed out of hand. So, freedom of speech on social media is indeed a First Amendment right (at least for now), but, as always, common sense must be applied.

Cynthia Murrell, February 20, 2019

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