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Speaker 1: The Supreme Court struck a blow for free speech on

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Speaker 1: the Internet. In one of the first cases the Court

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Speaker 1: is taken to address the relationship between the First Amendment

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Speaker 1: and the Internet. The justices unanimously throughout a North Carolina

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Speaker 1: law that barred registered sex offenders from using social media

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Speaker 1: sites that let minors become members, including Facebook, YouTube, and Twitter.

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Speaker 1: My guest is Stuart Benjamin, professor at Duke University Law School, Stewart.

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Speaker 1: How broad is this ruling? Is the Court basically saying

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Speaker 1: that access to social media is a constitutional right? Um,

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Speaker 1: That's part of it interesting because of the Court was unanimous.

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Speaker 1: All the justice participating in voted to invalidate this on

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Speaker 1: First Amendment grounds. But the majority, the five justice majority,

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Speaker 1: led by Justice Kennedy, really used very broad language and

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Speaker 1: talking about the importance of cyberspace and the uncertainty of

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Speaker 1: where it will go. And the argument of the majority was,

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Speaker 1: and in light of that uncertainty, we will we want

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Speaker 1: to be as starchy as possible in applying the First

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Speaker 1: Amendment tests. That is to say, we want to err

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Speaker 1: on the side of invalidating regulations because we want to

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Speaker 1: let social media go where they may. They know that

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Speaker 1: there's more people on social media than in North America. UM,

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Speaker 1: and so there's a very heavy element here of let's

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Speaker 1: try to have social media be as open as possible

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Speaker 1: and as subject to as little UH First Amendment regulation

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Speaker 1: as possible. What was the state's defense of the statute.

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Speaker 1: So the state's defense was pretty straightforward. Um, it's very hard,

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Speaker 1: they say, to stop people who are pedophiles, who are

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Speaker 1: praying on children, and we need we we don't have

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Speaker 1: any good narrow preventative measures. What we what we need

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Speaker 1: to do is have this broader approach that says, you're

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Speaker 1: not going to go on Facebook. You're not you're not

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Speaker 1: gonna go on Twitter, you are not going to be

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Speaker 1: on any sites where you can start engaging in conversations

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Speaker 1: with young people, find out where they live, arranged to

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Speaker 1: meet them, um, etcetera. We, and in fact, we, the state,

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Speaker 1: can't figure out a better way of achieving this. He

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Speaker 1: referred to the separate concurring opinion by Justice Samuel Alito,

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Speaker 1: which was joined by Chief Justice John Roberts and Justice

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Speaker 1: Clarence Thomas. Alito said he agreed with the result, but

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Speaker 1: not what he said. We're undisciplined, remarks Justice Kennedy's opinion

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Speaker 1: explained the what he called undisciplined. So what is reasonably

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Speaker 1: remarkable about the majority opinion, What clearly will be significant

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Speaker 1: for going forward is that Kenny's majority uses the language

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Speaker 1: that we associate with public forums like streets and parks,

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Speaker 1: which have always been the most protected from any sort

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Speaker 1: of speech restriction. You get to go on the street,

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Speaker 1: go on to public park and say just about anything, um,

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Speaker 1: And the government has no has its most limitability to

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Speaker 1: restrict you in those contexts. And um aliteles saying, hey,

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Speaker 1: this is way to this. This language that you're using

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Speaker 1: talking about the vast democratic forum forums of the internet,

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Speaker 1: which is picking up on a case decided to believe

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Speaker 1: it or not twenty years ago in decent communications over

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Speaker 1: the Internet. There's broad language that you're using. Is too broad, um,

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Speaker 1: because we might want in some future case to allow

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Speaker 1: some flexibility for legislatures, in fact, to put some limits

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Speaker 1: on social media for pedophiles or for other people, and

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Speaker 1: you are now making it seem like it's too difficult

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Speaker 1: for any legislature to be able to do that. What

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Speaker 1: does this mean for the regulation of offensive speech on

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Speaker 1: social media? Is the government not going to get involved

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Speaker 1: in it now. Um, it is very hard to see

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Speaker 1: how the Court would allow such regulations. Um. It was

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Speaker 1: already the case in this case. I mentioned from twenty

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Speaker 1: years ago, the Communications Decency Act tried to put limits

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Speaker 1: on indecent speech over the Internet, and Supreme Court rejected that,

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Speaker 1: then rejected later legislation that tried more modestly to limit indecency. Um.

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Speaker 1: I don't see any serious possibility of a legislature coming

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Speaker 1: up with language that Supreme Court would find here's the

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Speaker 1: term of luck sufficiently narrowly tailored you've got. You would

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Speaker 1: have to have legislation that perfectly covered only the speech

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Speaker 1: that advanced your government interest and nothing else. Very hard

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Speaker 1: to see how a legislature is gonna is going to

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Speaker 1: do that. If I'm a legislature and our read this opinion,

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Speaker 1: I think to myself, boy, it's really going to be

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Speaker 1: hard for me to engage in any meaningful regulation of

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Speaker 1: social media. Stewart, Is this decision in line with the

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Speaker 1: way the Supreme Court has treated free speech claims? Well,

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Speaker 1: this is a this a court that has been very

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Speaker 1: very aggressive and invalidating regulations, Um that that infringe on

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Speaker 1: on speech. So yes, very much in line with what

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Speaker 1: it did. Let me just remind you, only a few

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Speaker 1: years ago, UM, the court eight to one invalidated restrictions

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Speaker 1: on what on what could be said when you're coming

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Speaker 1: out of your son's funeral. Westboro Baptist Church puts up

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Speaker 1: signs saying things like thank God for your dead son.

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Speaker 1: There was a tort suit brought against some Supreme Court

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Speaker 1: said that is invalid. We can't have the limit even

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Speaker 1: this most offensive kind of speech. And the only surprise

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Speaker 1: actually really was that it wasn't unanimous. The only surprise

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Speaker 1: was that was eight one, and who was the one

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Speaker 1: justice lead and and here and here he is writing

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Speaker 1: for a little bit more, Uh, hold back on on

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Speaker 1: the First Amendment. So, like I said, is consistent as well.

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Speaker 1: Thank you so much for being on Bloomberg Law. That's

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Speaker 1: Stewart Benjamin, a professor at Duke University Law School who

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Speaker 1: specializes in First Amendment issues.