Is there a First Amendment right to LinkedIn?

The Supreme Court of the United States heard oral argument recently on a case that poses the question whether the First Amendment prevents a state from prohibiting a person from using certain designated social media sites. On its face, that question may elicit a question in response, e.g. “why would the state prevent anyone from using social media?”

And the answer is that North Carolina has a statute that prohibits registered sex offenders from accessing: “a commercial social networking Web 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 Web site.”

The statute defines “commercial social networking site” as one that:

• Is operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site.
• Facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.
• Allows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Web site.
• Provides users or visitors to the commercial social networking Web site mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.

That definition, of course, sweeps a lot of sites under its reach, including LinkedIn. And that poses a problem for people affected by the law. People use social networking for any number of reasons – some trivial, some not. Job seekers no doubt use LinkedIn to search for opportunities and otherwise network. A law that shuts off that resource makes it tough to find work.

The law may or may not be good policy. But that isn’t the issue for the Supreme Court. The question there is whether the Constitution permits it. And that decision may depend on a determination about what the statute actually prohibits. In upholding the law, the North Carolina Supreme Court concluded that the law did not restrict expressive conduct. And for that reason, the First Amendment did not invalidate the law, so long as the statute advanced an important government interest and wasn’t substantially broader than it needed to be to achieve the interest. Applying this test, the North Carolina Supreme Court concluded that the government’s interest in protecting children from sexual predators was important, and the statute’s limited application (it didn’t bar all internet usage) wasn't overly broad.

But the U.S. Supreme Court may conclude the statute in fact limits expressive conduct. If so, North Carolina would need to prove the ban is the “least restrictive means” to achieve the interest. That is a tougher test. And the Supreme Court may apply it. Justice Ruth Ginsburg, for example, noted that the First Amendment protects the right not only to speak but the right to receive information. A law barring access to a broad swath of social media sites would bar the receipt of information. If that’s the case, and North Carolina has to prove the statute is the “least restrictive” means” it will be in for an uphill fight. That standard allows the opposing party to effectively brainstorm all of the ways the law could be restricted. And if the court agrees with any of the ideas, it can invalidate the law.

We'll see how the Supreme Court resolves this one. There is still the prospect of a 4-4 tie (until Neil Gorsuch is confirmed). That would allow the law to stand. But if the Supreme Court applies the more strict standard, the odds are long for North Carolina.

It goes to show that we never know when the First Amendment will pop up. But it protects people we like as well as people who creep us out.

Jack Greiner is a lawyer with the Graydon Head law firm in Cincinnati and represents Enquirer Media in First Amendment and media issues