SCOTUS Recognizes the Internet as a Platform Worthy of Constitutional Protection – Scope Still Being Defined

Monday, June 26, 2017

Last week I read an interesting blog post on the Social Evidence website which discussed oral arguments before the US Supreme Court involving denial of Internet access to a convicted sex offender. During those arguments, several justices seemed to have a far greater understanding of social media technology than I would have thought likely.

At one point, Justice Anthony Kennedy noted that “…it seems to me that the sites…and their utility and extent of their coverage are greater than the communication you could ever have, even in the paradigm of public square.” And Justice Elena Kagan pointed out the high number of senators and governors using Twitter and said that “Everybody is on Twitter.”

A Legal Coming Out Party for the Internet

Now, comes the Court’s unanimous decision written by Justice Kennedy in the case of Packingham v. North Carolina.  As Justice Kennedy noted, “This case is one of the first this court has taken to address the relationship between the First Amendment and the modern internet…” and it confirms that what Justice Ruth Bader Ginsberg described as “the marketplace of ideas” is deserving of First Amendment protection.  Indeed, one commentator, Alex Abdo, senior staff attorney at the Knight First Amendment Institute at Columbia University, even went so far as to call the decision “…a constitutional coming out party for social media companies.”

Justice Sonia Sotomayor noted that Facebook, LinkedIn, and other sites offer a range of services beyond social networking. Justice Kagan said they are an important channel for political information and conversation, including the president’s proclivity for tweeting newsworthy musings. Justice Kennedy went on to write that “Social media users employ these websites to engage in a wide array of protected First Amendment activity on topics ‘as diverse as human thought’.” He continued that “A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.”

“To foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” Justice Anthony Kennedy continued. “Even convicted criminals — and in some instances, especially 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.”

The only contention in the decision came in a concurring opinion written by Justice Samuel Alito Jr. who, while agreeing with the outcome, criticized the scope of the decision. “The court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks,” Alito wrote. “And this language is bound to be interpreted by some to mean that the states are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites. I am troubled by the implications of the court’s unnecessary rhetoric.”  Justice Alito was joined in his concurrence by Chief Justice, John Roberts Jr. and Justice Clarence Thomas.

The upshot is that, although not specifically recognizing or discussing either electronic evidence or its location on the Internet, the Court has recognized the status of the Internet as a platform worthy of constitutional protection. And the scope of that protection is still being defined.

Coming out party indeed! But what impact this will have on how social media operates and the implications for eDiscovery remains to be seen. As Justice Kennedy wrote, “While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.”

Read the full opinion at

Tom O’Connor, Senior eDiscovery Consultant, Advanced Discovery

Tom O’Connor is nationally known as a consultant, speaker, and writer. In his consulting work, Tom specializes in working with law firms and their corporate clients to manage their electronic discovery needs. As senior eDiscovery consultant for Advanced Discovery, he assists clients in database design, implementation, and training. He also addresses specific eDiscovery issues such as retention policies, litigation holds and document exchange protocols. Tom speaks at major legal conferences and writes for both the Advanced Discovery blog and national legal publications.

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