Category Archives: First Amendment

Someone asked recently why we have posted the First Amendment as a regular feature on this page.

Well its just a reminder that we can all have a voice in the defense and perpetuation of our great Democratic Republic.

The fact is, many people make reference to the First Amendment when theyve never actually read it, or else they havent read it in a very long time.

The First Amendment is the front door of our great Constitution. Without it, claiming the many protections for the individual in this document would be a cumbersome and inefficient process.

There have been efforts through the years to erode the First Amendment, but fortunately the concept attributed to Voltaire and echoed by Patrick Henry has prevailed. I disapprove of what you say, but I will defend to the death your right to say it.

Such a noble stand!

Routinely we get comments from the public that paraphrased collectively say, He shouldnt be allowed to say that.

Well, we do have libel and slander laws which establish some parameters on our speech, but those provisions allow for evidence and a process of jurisprudence.

But the aforementioned reference, He shouldnt be allowed to say that typically involves contrasting opinions that come in the purview of fair game and often involves politics.

Keep in mind that the First Amendment also addresses freedom of religion, freedom of the press, the right to peacefully assemble and the right to petition the government for a redress of grievances.

The First Amendment is sort of an antidote to tyrants, big and small. It embraces concepts foreign to many governments around the world. It provides for broad discourse and robust debate elements that helped found our nation.Simply put, its the crown jewel of our Constitution and metaphorically speaking, should be worn on our sleeves!

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First Amendment: Crown jewel of our Constitution - Moultrie Observer

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First Amendment expert: DPD public records dispute raises ... - The Denver Channel

Im 7-foot-4 and three times as smart as you. The president of Trinidad and Tobago bugged my smart TVlast summer and recorded me watching Moonshiners marathons. Disgraceful! Did you notice the cool new flag hanging on my porch? The design is called a Swastika. I created it.

The First Amendment, by the way, was a cockamamie idea, promulgated by men who favored powdered wigs and wooden teeth.

For those of you scoring at home, the preceding rant included outright lies, unprovable assertions, reckless accusations, infantile insults and provocative bravado. What do they have in common? Theyre all protected by the First Amendment and the right to free speech which isnt entirely free.

There is a price to pay when one has to listen ascousin Wilbur enlivens Thanksgiving dinner with pointed political discourse. Or when an extremist peddling incendiary rhetoric shows up at the local university intending to elicit mushroom clouds of outrage. Or when the president of the United States tweets yet another prefabricated whopper.

Unprecedented and dangerous times?

Been there, heard that, says Saint Marys College politics professor Steve Woolpert, whose academic research includes the Constitution and Supreme Court.

Its not pretty, and it doesnt make you feel great to be a citizen of a country where this stuff is going on, Woolpert said. Its not unprecedented. Look tothedebate over ratifying the Constitution. The rhetoric was extremely heated and nasty. Around the Civil War, it was worse, because people were killing each other. People were being more virulent in their rhetoric then.

Thats difficult to believe given howIowa Congressman Steve King recently advocated for stringent immigration policies: We cant restore our civilization with somebody elses babies.

Or the dismissive manner with which President Donald Trump regards courts and judges.

Or the Brentwoodman who has decided to fly the Confederate flag outside his house as a history lesson. Neighbors who have been subjected tothe drive-by honks and hollers no doubtwish free speech could be a bit more serene.

The First Amendment is something people support in the abstract, Woolpert said. Support for free speech is quite limited when it comes to speech we hate. Ideally, what would happen is that it would broaden their understanding of why free speech is important.

It didnt work that way Feb. 1 when MiloYiannopoulos, then a senior editor at right-wing website Breitbart, was scheduled to give a talk at UC Berkeley. It was unlikely his message would find a receptive audience on a college campus in the liberal-leaning Bay Area. But he had the right to deliver it. Instead,his right to free speech was abridgedby demonstrators at a cost of more than $100,000 in property damage.

Woolpert is right. We tend to regard the First Amendment as a subjective document, embracing those passages we can conform to our world view. Itcould probably be said for the entire Bill of Rights that we revere it more than we understand it.

Or as our president said recently:

If the Constitution prevented me from doing one or two things, Id chalk that up to bad luck, Trump said after his revised travel ban was struck down by a judge. When literally everything I want to do is magically a violation of the Constitution, thats very unfair and bad treatment.

Could be worse.

Woolpert reminds that our second president, John Adams, signed into lawthe Alien and Sedition Acts, which made it a crime to criticize the government. Such an act enacted today, of course, would result in the extermination of many websites and most cable news outlets.

I can remember the civil rights era when people were having crosses burned on their lawn and people were being shot and lynched for asserting their (free speech) rights, Woolpert said. And despite all that, the First Amendment, it seems to be aprinciple that people support.

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No worries, Trump First Amendment still protecting free speech, even yours - The Mercury News

Its Sunshine Week in the Sunshine State, and not just because its Spring Break.

Since 2005, open government and freedom of information advocates have designated March 13-19 as a time to celebrate public transparency and raise awareness about the critical importance of access to government records.

Sunshine Week is timed to coincide with the birthday of James Madison, author of the First Amendment.

True to form, the First Amendment Foundation has been busy at the Florida Capitol battling to ensure the publics right to know. The Tallahassee-based nonprofit helped restructure a bill this week that would have severely limited access to information if the government decided not to comply with public records laws.

Floridas sunshinelaw says that it is the policy of this state that all state, county, and municipal records shall at all times be open for a personal inspection by any person.But the only real recourse against a government officer or agency that refuses to hand over public informationis to challenge them in court.

That can be expensive. As a safeguard, if a judge rules that the government violated public records laws, then the government must pay the record requesters attorneys fees.

The mandatory provision creates a level playing field for someone who can afford to pay for an attorney and those who cannot, according to the First Amendment Foundation.

Putting aside the issue of awarding attorneys fees with taxpayer money, a new bill would have made the mandatory fee provision optional. By changing the word must to shall, a judge could deny fees even if the court rules in favor of the citizen.

The potential consequences are enormous.

Without a penalty provision when the government is wrong, there is no incentive to be transparent and provide citizens with access to information about governmental decision-making. The result will be fewer challenges brought by citizens, which will certainly result in less government transparency, says the First Amendment Foundation.

But Tuesday, a compromise was reached and the Senate Judiciary Committee unanimously approved it.

Under the bill as amended in committee, the fee provision remains mandatory, Barbara Petersen, the foundations executive director, told Watchdog.org.

Petersen sounded the alarm about the proposal in February, then outlineda fix, and recently worked with Sen. Greg Steube, R-Sarasota, the bills sponsor, and the Florida League of Cities to amend the bill.

As part of the compromise, the bill also includes a five-day notice requirement that would alert a public records custodian of a pending records request before a lawsuit can be filed, and an additional provision that allows courts to crack down on improper records requests the issue Steubes bill initially sought to address.

Hisapproach, however, also would have penalized legitimate inquiries and legal challenges.

In recent years, lawmakers have decried a cottage industry of records requests that are intended to trigger sunshine violations. Petersen calls them predatory requests.

Theyre designed to fail, she told Watchdog.org. When the agency doesnt respond, or doesnt respond quickly enough, then the requester files suit in civil court. A few days later, they call up the agency and offer to settle for a financial payout with the promise of dropping the lawsuit.

In 2014, the issue became a statewide concern when a circuit court judge ruled that Jeffrey Gray, a self-described civil rights activist from northeast Florida, was engaged in a baiting gesture meant to achieve personal financial gain, rather than a genuine effort to obtainpublic information.

According to the Florida Bar, the ruling said Gray had been a plaintiff in 18 separate lawsuits involving public records requests in Duval County, and that Grays lawyer had paid him when attorneys fees were recovered. The judgment said the practice was nothing more than a scam.

Knocking out Floridas mandatory fee provision would haltfrivolous, harassing and disingenuous records requestsdesigned to force sunshine violations, but not without collateral damage.

In doing that, the bill wouldnt just punish the people who are taking advantage of the system, but the 99 percent of people who make requests because theyre legitimately seeking public records, Petersen said.

The amendment adopted this week should fix that.

If Steubes amended bill becomes law, not only will courts continue to award attorneys fees when the government wrongfully withholds public information, but courts also would be able to assess attorneys fees against anyone who attempts to profit from scamming Floridas public records system.

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Sunshine Week: First Amendment Foundation goes to bat for ... - Florida Politics (blog)

President Donald J. Trump's call for the press to cease using anonymous sources is a blatant attack on the First Amendment. Without the ability to use anonymous sources to provide crucial information, it could seriously undermine the media's efforts to get to the bottom of major stories. Take Watergate, for example. An explosive story like that would have likely never broken in a country without protected media sources. By scaring away the Mark Felts of this world from aiding in the exposure of truth, we really do ourselves a disservice.

As veteran newsman Dan Rather once wrote, "A free and truly independent press fiercely independent when necessary is the red beating heart of freedom and democracy." In my opinion, a country that lacks a free press isn't much of a country. So for the sake of democracy and survival of liberty, President Trump's remarks and the subsequent exclusion of several mainstream media outlets from a White House briefing is something we all should be deeply concerned about.

Ryan Curtis

Salt Lake City

Originally posted here:
Letter: Anonymous sources a First Amendment right - Deseret News

Steamboat Springs District Judge Shelley Hill on Thursday ruled that a Jan. 26 court hearing should not have been closed to the public, and the transcripts should be released.

On Jan. 26, a preliminary hearing for Miguel Diaz-Martinez was scheduled. Diaz-Martinez has been charged with 41 felonies related to accusations that he exchanged drugs for sex with underage girls.

Diaz-Martinez ultimately decided he did not want a preliminary hearing, and the case was bound over to District Court, where felonies are heard.

It was disclosed in court during the Jan. 26 hearing that Diaz-Martinez had been offered a plea deal.

In a rare move, Routt County Judge James Garrecht offered to close his courtroom to the public for a few minutes. District Attorney Brett Barkey said he wanted to state the plea deal on the record, but he did not think it was appropriate in this case to do it publicly.

The Steamboat Pilot & Today requested the transcripts, believing court should not have been held in secret.

Hill agreed.

Once the public is excluded, that First Amendment right has been abridged, Hill said.

The defense and prosecution argued that releasing the transcript containing the plea offer would harm the ability to seat an impartial jury. They were concerned that, if an impartial jury could not be found, the trial would have to be held in another county.

Because of that, District Attorney Brett Barkey said there was an overriding and compelling interest to close the courtroom to the public.

As we all know, there is a clash between two constitutional divisions, Hill said.

The First Amendment guarantees freedom of the press, while the Sixth Amendment guarantees a person the right to a fair trial.

Hill said there were times when the freedom of the press might be limited, but she had the ability to ensure Diaz-Martinez still receives a fair trial.

Hill said pre-trial media coverage helps ensure an open, competent judicial system based on integrity and fundamental fairness.

Without constitutional freedom of the press and public scrutiny, government, including the judicial, and for trials themselves, could easily become secret proceedings where fundamental fairness could always be suspect, Hill said.

The court is preparing the transcripts for the Steamboat Pilot & Today.

On Thursday, Diaz-Martinez was scheduled for an arraignment to either plead guilty or not guilty to the charges. The arraignment was postponed until 2:30 p.m. April 26.

Also on Thursday, Hill partially denied a request from the Steamboat Pilot & Today to take photos in the courtroom.

The defense did not want photos taken, because it felt doing so might endanger Diaz-Martinezs right to a fair trial.

Hill ruled photos could not be taken while Diaz-Martinez appeared in jail clothing. Diaz-Martinez was still in custody and in jail clothing Thursday.

Photos will be allowed if there is a trial. During trials, defendants are allowed to wear normal clothing to avoid the appearance of guilt in front of jurors.

The Steamboat Pilot & Today will still not be allowed to show Diaz-Martinez wearing shackles.

To reach Matt Stensland, call 970-871-4247, email mstensland@SteamboatToday.com or follow him on Twitter @SBTStensland

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1st Amendment triumphs in court - Craig Daily Press

Ronald Reagan

On MARCH 15, 1941, Franklin Roosevelt warned at the dinner of White House correspondents: Modern tyrants find it necessary to eliminate all democracies. A few weeks ago I spoke of freedom of speech and expression, freedom of every person to worship God in his own way. If we fail if democracy is superseded by slavery then those freedoms, or even the mention of them, will become forbidden things. Centuries will pass before they can be revived. When dictatorships disintegrate and pray God that will be sooner then our country must continue to play its great part. May it be said of us in the days to come that our children and our childrens children rise up and call us blessed.

The Senate voted down letting children voluntarily pray in public schools on March 15, 1984.

President Reagan said: I am deeply disappointed that, although a majority of the Senate voted for it, the school prayer amendment fell short.

On Sept. 25, 1982, Ronald Reagan said: Unfortunately, in the last two decades weve experienced an onslaught of such twisted logic that if Alice were visiting America, she might think shed never left Wonderland. Were told that it somehow violates the rights of others to permit students in school who desire to pray to do so. Clearly this infringes on the freedom of those who choose to pray, the freedom taken for granted since the time of our Founding Fathers.

Reagan continued: To prevent those who believe in God from expressing their faith is an outrage. The relentless drive to eliminate God from our schools should be stopped.

Ronald Reagan said Feb. 25, 1984: Sometimes I cant help but feel the First Amendment is being turned on its head.

Ronald Reagan stated in a Q & A session, Oct. 13, 1983: The First Amendment has been twisted to the point that freedom of religion is in danger of becoming freedom from religion.

Reagan told the Alabama Legislature, March 15, 1982: To those who cite the First Amendment as reason for excluding God from more and more of our institutions and everyday life, may I just say: The First Amendment of the Constitution was not written to protect the people of this country from religious values; it was written to protect religious values from government tyranny.

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Ronald Reagan stated in a radio address, 1982: The Constitution was never meant to prevent people from praying; its declared purpose was to protect their freedom to pray.

Ronald Reagan stated in a radio address, Feb. 25, 1984: Former Supreme Court Justice Potter Stewart noted if religious exercises are held to be impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Permission for such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit them is seen not as the realization of state neutrality, but rather as the establishment of a religion of secularism.

Ronald Reagan told the Annual Convention of the National Religious Broadcasters, Jan. 30, 1984: I was pleased last year to proclaim 1983 the Year of the Bible. But, you know, a group called the ACLU severely criticized me for doing that. Well, I wear their indictment like a badge of honor.

Ronald Reagan worded it differently on the National Day of Prayer, May 6, 1982: Well-meaning Americans in the name of freedom have taken freedom away. For the sake of religious tolerance, theyve forbidden religious practice.

Ronald Reagan stated at an Ecumenical Prayer Breakfast, Aug. 23, 1984: The frustrating thing is that those who are attacking religion claim they are doing it in the name of tolerance and freedom and open-mindedness. Question: Isnt the real truth that they are intolerant of religion?

Brought to you by AmericanMinute.com.

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What the 1st Amendment does - WND.com

By Hillel ItalieThe Associated Press

NEW YORK Whenever Donald Trump fumes about "fake news" or labels the press "the enemy of the people," First Amendment scholar David L. Hudson Jr. hears echoes of other presidents but a breadth and tone that are entirely new.

Trump may not know it, but it was Thomas Jefferson who once said, "Nothing can now be believed which is seen in a newspaper," said Hudson, a law professor at Vanderbilt University.

"But what's unusual with Trump is the pattern of disparagement and condemnation of virtually the entire press corps. We've had presidents who were embittered and hated some of the press Richard Nixon comes to mind. ... But I can't think of a situation where you have this rat-a-tat attack on the press on virtually a daily basis, for the evident purpose of discrediting it."

Journalism marks its annual Sunshine Week, which draws attention to the media's role in advocating for government transparency, at an extraordinary moment in the relationship between the presidency and the press.

First Amendment advocates call the Trump administration the most hostile to the press and free expression in memory. In words and actions, they say, Trump and his administration have threatened democratic principles and the general spirit of a free society: The demonizing of the media and emphatic repetition of falsehoods. Fanciful scenarios of voter fraud and scorn for dissent. The refusal to show Trump's tax returns and the removal of information from government websites.

And in that battle with the Trump administration, the media do not have unqualified public support.

According to a recent Pew survey, nearly 90 percent of respondents favored fair and open elections while more than 80 percent value the system of government checks and balances. But around two-thirds called it vital for the media to have the right to criticize government leaders; only half of Republicans were in support. A recent Quinnipiac University poll found that Americans by a margin of 53-37 trust the media over Trump to tell the truth about important issues; among Republicans, 78 percent favored Trump.

"We're clearly in a particularly polarizing moment, although this is something we've been building to for a very long time," says Kyle Pope, editor in chief and publisher of the Columbia Journalism Review, a leading news and commentary source for journalism.

"I think one of the mistakes the press made is we became perceived as part of the establishment. And I think one of the silver linings of the moment we're in is that we have a renewed sense of what our mission is and where we stand in the pecking order, and that is on the outside, where we belong."

Hudson, ombudsman of the Newseum's First Amendment Center, says it's hard to guess whether Trump is serious or "bloviating" when he disparages free expression. He noted Trump's comments in November saying that flag burners should be jailed and wondered if the president knew such behavior was deemed protected by the Constitution (in a 1989 Supreme Court ruling supported by a justice Trump says he admires, the late Antonin Scalia).

Hudson also worries about a range of possible trends, notably the withholding of information and a general culture of secrecy that could "close a lot of doors." But he did have praise for Trump's pick to replace Scalia on the court, Neil Gorsuch, saying that he has "showed sensitivity" to First Amendment issues. And free speech advocates say the press, at least on legal issues, is well positioned to withstand Trump.

"We have a really robust First Amendment and have a lot of protections in place," says Kelly McBride, vice president of The Poynter Institute, a nonprofit journalism education center based in St. Petersburg, Florida. "That doesn't mean that attempts won't be made. But when you compare our country to what journalists face around the world, I still think the U.S. is one of the safest places for a journalist to criticize the government."

The First Amendment, which states in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press," is far broader and more uniquely American than when ratified in 1791.

At the time, free expression was based on the legal writings of Britain's Sir William Blackstone. The First Amendment protected against prior restraint, but not against lawsuits once something was spoken or published. Truth was not a defense against libel and the burden of proof was on the defendant, not the plaintiff. And the Bill of Rights applied to the federal government, but not to individual states, which could legislate as they pleased.

The most important breakthrough of recent times, and the foundation for many protections now, came with the New York Times Co. v. Sullivan case of 1964.

The Times had printed an advertisement in 1960 by supporters of the Rev. Martin Luther King Jr. that noted King had been arrested numerous times and condemned "Southern violators of the Constitution." The public safety commissioner of Montgomery, Alabama, L. B. Sullivan sued for libel. He was not mentioned by name in the ad, but he claimed that allegations against the police also defamed him. After a state court awarded Sullivan $500,000, the Times appealed to the Supreme Court.

Some information in the ad was indeed wrong, such as the number of times King was arrested, but the Supreme Court decided unanimously for the Times. In words still widely quoted, Justice William Brennan wrote that "debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." He added that a libel plaintiff must prove "that the statement was made ... with knowledge that it was false or with reckless disregard of whether it was false or not."

"It was breathtakingly new," First Amendment attorney Floyd Abrams said of Brennan's ruling. "It was an extraordinary step the court was taking."

But freedom of speech has long been championed more in theory than in reality. Abraham Lincoln's administration shut down hundreds of newspapers during the Civil War. Woodrow Wilson championed the people's "indisputable right to criticize their own public officials," but also signed legislation during World War I making it a crime to "utter, print, write, or publish" anything "disloyal" or "profane" about the federal government. During the administration of President Barack Obama, who had taught constitutional law at the University of Chicago, the Wilson-era Espionage Act was used to obtain emails and phone records of reporters and threaten James Risen of The New York Times with jail.

Predicting what Trump might do is as difficult as following his views on many issues. He often changes his mind, and contradicts himself.

During the campaign last year, he spoke of changing the libel laws to make it easier to sue the media. But shortly after the election, he seemed to reverse himself. He has said he is a "tremendous believer of the freedom of the press," but has worried that "Our press is allowed to say whatever they want and get away with it."

Trump's disparagement of the media has been contradicted by high officials in his administration. Secretary of Defense James Mattis said recently that he did not have "any issues with the press." Vice President Mike Pence was an Indiana congressman when he helped sponsor legislation (which never passed) in 2005 that would protect reporters from being imprisoned by federal courts. In early March, he spoke at a prominent gathering of Washington journalists, the Gridiron Club and Foundation dinner.

"Be assured that while we will have our differences and I promise the members of the Fourth Estate that you will almost always know when we have them President Trump and I support the freedom of the press enshrined in the First Amendment," he said, while adding that "too often stories make page one and drive news with just too little respect for the people who are affected or involved."

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'Polarizing moment' for the First Amendment - Rockford Register Star

Harpo Productions/Oz WorksLast week, a Georgia state judge dismissed a lawsuit filed against talk-show host Dr. Oz over claims made on his show last year that much of the olive oil sold in U.S. grocery stores is fraudulent. The suit alleged that Oz wrongly disparaged the corrupt olive oil industry.

The lawsuit was brought against Oz by an industry trade group, the New Jersey-based North American Olive Oil Association (NAOOA), under Georgia's so-called veggie libel law. It's one of about a dozen states with these awful lawswhich allow a party to sue for damages if a person allegedly disparages their agricultural productson the books.

Oz won in court thanks to Georgia's anti-SLAPP law. Such laws gives people who speak out on issues of public concern a useful tool to counter lawsuits that seek to intimidate them into silence. ("SLAPP" is an acronym that stands for "strategic lawsuit against public participation.")

Several domestic olive oil brands had also been sued alongside Oz.

Fraud in the olive oil business is, in fact, a longstanding problem. A 1917 Missouri court case, Lo Buono v. V. Viviano & Bros Macaroni Mfg. Co., centered on fraudulent olive oil, as did a 1950 federal case involving another producer. In the past decade, The New Yorker has dedicated at least two lengthy pieces to the issue of fraudulent olive oil. And Congress recently held hearings on the issue.

The fictional Corleone crime family in Mario Puzo's The Godfather used its olive oil business, Genco, as a cover for its criminal activities. That depiction of mafia involvement in the olive oil trade isn't far from the truth in some cases. Facing U.S. tax fraud charges in 1951, mafia boss and drug trafficker Francisco Paolo Coppola claimed to earn much of his income as an olive oil producer.

How does such fraud play out? An olive oil might be misbranded, claiming to be of higher quality than it really isfrom an earlier pressing, for exampleor to be from one country but hail from another. Or it might be adulterated, containingfor examplea mix of olive oil and other less expensive food oils.

In fact, the NAOOA, which represents many foreign olive oil producers, whose products make up the bulk of the olive oil sold in the United States, is itself keen to identify and prevent such fraud in the industry. A 2015 report issued by the group, for example, raises "significant questions" about the quality of California olive oils tested by NAOOA.

The NAOOA clearly understands the value of free speech.

Listen, I think Oz is a quack. Forbes writer Kavin Senapathy, whose writings expose quackery around food, was probably right when she called Oz's olive oil segment as "yet another gag in his lineup of shady antics."

But it's also another reminder of attacks on Dr. Oz's First Amendment rights.

In 2014, Oz was called before Congress to explain his claims about a variety of foods and supplements he claims have particular health-promotion qualities.

"Oz has absolutely zero responsibility to hold mainstream views and every right to make money off of those views," I wrote in a 2014 piece defending Oz's free-speech rights and attacking Congress for attempting to intimidate him into silence. "His popularity has absolutely no impact on his right to say whatever the hell he wants to say. And being hauled before Congress for saying what he wants places a tremendous burden on his, your, and my First Amendment rights."

As a reminder, the First Amendment protects speech regardless of its subjective value. It protects speech by neo-Nazis and Black Muslims, pornographers and religious zealots, and climate change alarmists and deniers alike. And your right to speak freely is stronger today thanks to a renowned medical doctor who freely espouses many views that appear, by any reasonable measure, to be objectively false.

Critics of Oz are free to rail against his idiocies. I hope they'll continue to do so. But when courts and lawmakers attempt to intimidate him into silence, they are more apt to turn Dr. Oz into a First Amendment hero than expose what he truly is.

Link:
Dr. Oz Rebuffs First Amendment Challenge by Olive Oil Industry ... - Reason

Jack Greiner 7:04 a.m. ET March 10, 2017

John C. Greiner, attorney for Graydon Head Legal Counsel. He's a commercial litigator with an emphasis on communications and media law. He serves on the firm's Appellate Practice Group. (Photo: Provided, Provided)

The Supreme Court of the United States heard oral argument recentlyon 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:

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 isnt 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 wasnt substantially broader than it needed to be to achieve the interest. Applying this test, the North Carolina Supreme Court concluded that the governments interest in protecting children from sexual predators was important, and the statutes limited application (it didnt 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 thats 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

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Is there a First Amendment right to LinkedIn? - Cincinnati.com