Given the prevalence of social media in modern society, more and more First Amendment cases in the future will likely involve speech over social media.
Numerous First Amendment issues have arisen out of the communications medium known as social media or Internet social networking sites, such as Facebook or Twitter. No less an authority than the U.S. Supreme Court has explained in Packingham v. North Carolina (2017) that social media “websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”
Decisions have emphasized First Amendment free speech capabilities of social media
In Packingham, the Supreme Court invalidated a North Carolina law that prohibited sex offenders from accessing social media websites. The court explained that such a law was overbroad and would criminalize a wide range of legal activities. The decision emphasized the free-speech capabilities of social media, similar to how the court viewed the speech-enhancing capabilities of the Internet in Reno v. ACLU (1997).
Some have faced prosecution for true threats on social media
Individuals’ use of social media has led to interesting developments in other areas of First Amendment law. For example, many individuals have faced prosecution for allegedly uttering true threats for communications on social media.
The U.S. Supreme Court addressed a case involving alleged true threats posted on Facebook in Elonis v. United States (2015). In Elonis, the court invalidated Elonis’ conviction because the jury instructions allowed a conviction based only upon negligence or reasonableness, rather than a more definitive form of mens rea, or mental state.
5th Circuit said schools could punish student for off-campus YouTube post
Many student speech cases have arisen out of social media communications. One of the more pressing questions in First Amendment law is the extent of school officials’ power to
regulate students’ off-campus communications over social media. For example, in Bell v. Itawamba School District (2015), the 5th U.S. Circuit Court of Appeals determined that public school officials could punish a student for a rap song he created off-campus and posted on Facebook and YouTube. The video referenced two teachers at the school who allegedly had engaged in sexually inappropriate behavior with female students.
However, in Mahanoy Area School District v. B.L. (2021), the Supreme Court said that a cheerleader's vulgar post to Snapchat after not making the varsity squad did not pass the substantial disruption test and the student's free speech rights protected her from school discipline.
Many public employees have been disciplined for social media posts
Another area where social media communications have presented interesting First Amendment issues is public employee speech cases. Many employees have faced discipline for Facebook posts about their bosses, co-workers, or students.
For example, the 6th U.S. Circuit Court of Appeals in December 2022 upheld the termination of a Maryville, Tenn., police officer over Facebook posts that were critical of the county sheriff. The court reasoned that the local police department had an interest in maintaining a good working relationship with the sheriff’s department and this trumped the officer’s free-speech rights.
Given the prevalence of social media in modern society, more and more First Amendment cases in the future will involve speech over social media.
This article was published in 2017 and updated as recently as 2021 by encyclopedia staff. David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017).Send Feedback on this article