Access to Computers and Social Media as a Constitutional Right
The internet and social media have become primary engines of First Amendment speech, economic activity, and maintaining social and family relationships. Well before COVID-19 and the practice of physical “social distancing,” American courts acknowledged the increasing importance of access to a computer/smart device and the internet in everyday life.
There is a “new normal” that has resulted from the pandemic (and concerns of future pandemics) which has accelerated society’s dependence on the use of computers and social networks. Pandemics have changed the way we live, work, and communicate. People increasingly rely on their smart devices and internet access for everyday activities such as work, banking, grocery shopping, medical care, and increasingly, access to social media platforms.
The evolution of computers, smart devices, and telecommunications has resulted in ubiquitous engagement in e-commerce and social media usage on a grand scale. Today, networks connect users around the world in ways that were unfathomable twenty years ago, and the power of a mobile smart device in the hands of a child dwarfs even the most sophisticated computer networks available as little as 25 years ago. Although the notion of access to social media as a constitutionally protected activity in the United States may have been unfathomable twenty years ago, courts now acknowledge access as a basic right. This post explores some of the court decisions and the legal trajectory of social media as a constitutionally protected activity.
Rejecting Blanket Bans on Access to Computers and Social Media
As digital dependency has become widespread, courts have been forced to address the basic need for access to computers, the internet, and social media networks. In the last ten years, there have been a series of state and federal cases that have refuted blanket restrictions denying access to computers, the internet, and most recently, social media. Consequently, now any restrictions placed on access to computers and the internet must be exactingly tailored to “legitimate and compelling needs of society” before any such restrictions may be imposed. The courts are recognizing that the internet and social media are now primary engines of First Amendment speech, economic activity, and maintaining social and family relationships.
Caselaw Concerning Social Media Access
It is no coincidence that as the COVID variants became a state and national health emergency social distancing dramatically forced people to use social media to communicate and connect with those physically distanced from them, including colleagues, family and friends.
Even convicted sex offenders cannot be subject to a “blanket social media prohibition” without a clearly articulated and specific justification. Our courts have confirmed that access to social media is a constitutionally protected activity that may only be restricted when such prohibitions: (1) are narrowly tailored, (2) serve a legitimate government interest; and (3) do not burden protected speech. Any provision that limits access to social media must be specific, subject to “objective measurement,” and must not be overbroad. While courts have discretion in imposing conditions of sentencing and the New Jersey State Parole Board has broad authority in setting special conditions of supervision, blanket prohibitions of access to computers, to the internet—and now, blanket prohibitions to accessing social media, are being struck down.
Society’s increasing dependence and digital participation in political, economic and social activity, access to computers, smart phones, the internet, and social media is now recognized as a necessary part of life and constitutionally protected activity.
As technology transforms our society, as we become more and more dependent on technology for how we interact with each other, the courts are adapting to meet the new challenges that are presented. Welcome to the new normal and the recognition of the primary role computers. the internet, and social media play in our lives.
For resources relevant to these issues, check out:
- United States Constitution, First Amendment;
- New Jersey Constitution, (1947) Article I, Paragraphs 6 and 18;
- United States v. Eaglin, 913 F.3d 88, 91 (2d Cir. 2019);
- United States v. Holena, 906 F.3d 288, 290 (3d Cir. 2018);
- State v. Hester, 233 N.J. 381, 388, 186 A.3d 236 (2018);
- Packingham v. North Carolina, 582 U.S. ___, 137 S. Ct. 1730, 198 L.Ed.2d 273 (2017);
- State v. R.K., 463 N.J. Super. 386, (App. Div. 2020)
- K.G. v. New Jersey State Parole Bd., 458 N.J. Super. 1,
- J.I. v. N.J. State Parole Bd., 228 N.J. 204, 216, 226 n.6, 155 A.3d 1008 (2017);
- Jamgochian v. New Jersey State Parole Bd., 196 N.J. 222, 246, 952 A.2d 1060 (2008)
- Town Tobacconist v. Kimmelman, 94 N.J. 85, 98, 462 A.2d 573 (1983);
- of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982));
- 2 William J. Rich, MODERN CONSTITUTIONAL LAW 274 (West, 3rd ed. 2011 & Supp. 2019-2020);
- Note, Recent Case: Criminal Law – Supervised Release – Third Circuit Approves Decade-Long Internet Ban for Sex Offender, 123 L. Rev. 776, 779 (2010);
Eric Marcy, Esq., is Of Counsel at Lyons & Associates, P.C., with Offices in Somerville, Morristown, and Freehold. His practice areas include criminal, civil rights, professional licensing, health care, and administrative law
Inquiries may be directed to him by telephone at 908-575-9777 or by email.
Mr. Marcy has been a member of the New Jersey Association of Criminal Defense Lawyers since 1987. He served as a Trustee of the NJ-ACDL from 2001 to 2010.
Mr. Marcy served as an instructor for the Institute of Continuing Legal Education Criminal Practice “Skills and Methods” program for newly admitted attorneys from 2000 to 2009.
Mr. Marcy has been selected for inclusion in New Jersey Super Lawyers® lists 2006-2009, 2017 to the present.
He is also an authorized attorney under the New Jersey State PBA Legal Protection Plan, representing law enforcement officers in administrative, civil and criminal matters.