02 Mar Court Case: A Dangerous, More Powerful Facebook
Yes, Facebook could soon morph into a digital monster of near comic-book proportions, and the other social media along with it. All, because of a lawsuit before the U.S. Supreme Court. To put this case in context, think of the mild-manner scientist in the Marvel storyline who was turned into the green-skinned, innately destructive behemoth The Incredible Hulk because of a well-intentioned experiment gone terribly wrong. Facebook and other social platforms like Twitter and Instagram play the part of the scientist Bruce Banner, with the High Court, experimenting with the volatile cocktail of free speech + Internet, providing the exploding gamma-radiation.
Here’s the case: this week the Supreme Court heard arguments challenging a North Carolina law that makes it a crime for registered sex offenders to “access” any “social networking Website” with knowledge that minors are also permitted to login. The challenge was brought by man convicted of taking “indecent liberties with a minor.” The man was placed on the sex offender registry, and sometime later he posted an innocuous message on Facebook about a traffic ticket, in violation of the N.C. law. Criminal charges then followed.
Now his lawyers are arguing that the statute violates the First Amendment. In other words, they say it’s the same as if the law had prohibited the sex offender from reading the morning newspaper. Well, not really. Newspapers are static; the web creates unlimited digital connectivity and is sometimes used as a tool by dangerous predators. During oral argument on Monday, however, most of the Justices sounded skeptical about the legality of the N.C. statute, apparently leaning toward protecting the right of sex offenders to have constitutional “access” to social media like Facebook. Justices Ruth Bader Ginsburg and Elena Kagan called digital social media like Facebook, respectively, “the marketplace of ideas,” and “the way people structure their civic community life.” If the Court strikes down the North Carolina law (admittedly not a paragon of perfect draftsmanship), two things could result.
First, Facebook and all those social networking sites will have gained even more enlargement as supposed pillars of “free speech.” They are big now, but they will become, in a legal sense, Hulkish titans with near unstoppable autonomy. That could create some disturbing, unintended consequences. While the N.C. law criminalizes registered sex offenders who merely access rather than communicate to minors over these sites, even that situation poses a danger. Teen and pre-teen web users are notoriously prone to disclosing private information about themselves, their friends, their activities, and their whereabouts. The grim reality is that potential predators troll the Internet, looking for vulnerable targets. The Supreme Court may unwittingly increase that risk.
Last summer the Georgia Supreme Court faced a similar First Amendment challenge. At issue was a state law that criminalizes the use of the Internet by adults (including those who falsely masquerade as teen peers) who knowingly communicate graphic sexual information to young recipients. I had the privilege of helping the American Center for Law and Justice forge arguments to defend the Georgia law. Happily, it was upheld. But incredibly, the lawyers who challenged the law actually argued that there was a constitutional right for adult Internet exploiters to “talk dirty” to minors over social media web platforms.
Those aren’t the only dangers. Facebook et al. already have a reputation for abusing their web power to shut down otherwise lawful opinions simply because they didn’t like them. Examples include the Facebook pages of Gov. Mike Huckabee and Fox contributor Todd Starnes, and the page of former U.S. special operations warriors who criticized President Obama; all of those sites were blocked. Depending on the ruling in the pending case before the U.S. Supreme Court, we could see a host of digital web-based monsters, emboldened by a dose of skewed “free speech” gamma-radiation, growing bolder and wreaking havoc against politically incorrect users, or even worse – providing the means by which sexual predators could stalk closer toward America’s naïve, and vulnerable youth.