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A California Court Finds Social Media Posts Aren’t a First Amendment Right

The Los Angeles County courthouse building in California.

The Los Angeles County courthouse building in California. Shutterstock


Connecting state and local government leaders

In this case involving a juvenile on probation, the court found a “narrowly tailored” limit on social media use was legal for rehabilitation purposes.

Social media has created a slew of new issues in the courts and forced judges to ponder the legal import of postmodern concepts like Facebook friends and Instagram followers.

Last year, the U.S. Supreme Court ruled in Packingham v. North Carolina that social media platforms are the new “public square,” and access to them is protected by the First Amendment, which guarantees free speech. But that doesn’t necessarily mean there are no limitations on how social media can be used when an ex-convict is on probation. For example, a California state appeals court just found in AA v. The People that a “narrowly tailored” limit on social media use for a juvenile on probation—in this case for a felony offense—was legal for rehabilitation purposes and to protect a crime victim. (It is common for adults and juveniles serving probation for a felony offense to have many limitations imposed on their conduct and communications as part of the terms of conditional release.)

The decision is interesting not only because it shows just how deeply social-media use has penetrated the culture, but also the extent to which some believe they need to publicize their activities.

The juvenile involved in the case, AA, is 16 years old. He was placed on probation by a Los Angeles County Court after being found guilty of assaulting someone on a basketball court, necessitating two plastic surgeries for the victim, who will be permanently scarred. While his case was under consideration, he posted a picture of his subpoena on Instagram with the caption,  “[N]ew Nexflix series coming. I’m a 16-year-old felon.” The juvenile court judge admonished him not to post about his case again.

But AA didn’t listen. At the next hearing, he posted a video of himself dancing in front of the courthouse. When the judge asked him about it, AA said, “[P]eople knew I was in court; so I shot a video because I do have a lot of Instagram followers, and they do tend to, like, care, in a sense of what I’m doing.” He was again ordered to refrain and warned that his posts could be used against him if he continued to ignore the judge’s order.

When it came time to lay out conditions for the juvenile’s probation, the court told AA to take down any social-media posts having to do with his case and the offense that led to it and prohibited him from posting anything new about the matter. The juvenile didn’t object at the hearing, but he did file an appeal arguing that the probation conditions violated his free-speech rights. It wasn’t fair, AA argued, that he couldn’t even express remorse about his actions without violating probation.

The appeals court couldn’t have agreed with AA less, stressing the lowly position of juveniles in the criminal justice system. The opinion summarized the case as follows:

One of the goals of the juvenile law is reformation and rehabilitation of the minor’s attitude so that he respects the rights of others. Here, appellant seems to think that his felonious conduct is a springboard for braggadocio on the internet. Appellant has First Amendment freedom of speech rights. But the juvenile court may curtail such rights in an appropriate case by a narrowly tailored condition of probation. This is an appropriate case.

Basically, it’s true that AA has the right to speak freely. But his freedom is legally curtailed by probation conditions designed to rehabilitate him and protect the victim. The court noted that his social media posts could endanger the victim in this case and that there were plenty of other ways AA could communicate, including email, phone, in person, and via written correspondence.

To the extent that AA’s case seems to contradict the conclusions about free speech and social media in Packingham, it’s notable that the Supreme Court case involved a North Carolina law that made it a felony for sex offenders to have any social media presence at all, indefinitely. In this juvenile case, however, AA was only barred from posting about his offense and only for the duration of his probation.

AA also argued that his trial court attorney was ineffective for failing to object to the social media prohibition condition when it was initially imposed. This claim was dismissed with barely any discussion. The court said objecting would have been “an exercise in futility” anyway, so counsel couldn’t be considered deficient.

Ephrat Livni writes for Quartz, which originally published this article. 

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