(Jason Doiy/ ALM)

Mark the date: February 27, 2017 may go down in history as the day that social media—from Facebook to SnapchatTwitter to LinkedIn—entered the pantheon of expressions deserving First Amendment protection.

During a lively oral argument, U.S. Supreme Court justices discussed social media with the same respect usually reserved for colonial town criers and broadsheet newspapers that used to be the main source of news for Americans.

“It is a crucially important channel of political communication,” Justice Elena Kagan said, noting that in addition to President Donald Trump, all 50 governors and all 100 U.S. senators and all members of the House of Representatives have Twitter feeds. “It is imbedded in our culture as ways to communicate and ways to exercise our constitutional rights.”

Justice Anthony Kennedy drew an analogy between social media and the public square, where free speech rights are well-recognized. Social media, he said, are “greater than the communication you could have ever had, even in the paradigm of a public square.”

Justice Ruth Bader Ginsburg said restricting access to social media would mean “being cut off from a very large part of the marketplace of ideas. And the First Amendment includes not only the right to speak, but the right to receive information.”

Noting that courts have long protected expression “where to allow certain groups of people to speak is actually dangerous,” Justice Stephen Breyer said stifling social media would be hard to justify unless there is at least “a clear and present danger.”

The discussion came during oral argument in Packingham v. North Carolina, a First Amendment case brought by a North Carolina man who was convicted for posting on Facebook. He violated a state law that bars the use of social media by anyone on the state’s sex offender registry.

Through history, the Supreme Court has been slow to anoint new media—whether movies, television, the Internet or videogames—with strong First Amendment protection. But once it does, the court’s embrace has helped the new forms of communication to flourish without much government regulation.

When it comes to social media, however, the court has said little until Monday. In 2015, the court in Elonis v. United States ruled in favor of a Pennsylvania man arrested for threating his estranged wife on Facebook, but it skirted the First Amendment issue involved.

On Monday, the court dealt with the subject head-on, using First Amendment metrics like “overbreadth” and “strict scrutiny.” And the justices showed a level of familiarity with social media that was surprising, given that most justices, when asked, say they don’t use Twitter or Facebook. (In 2011, Justice Stephen Breyer allowed that he dabbled with social media, but wanted no followers.) The justices generally are schooled in modern media by their tech-savvy law clerks.

Stanford Law School lecturer David Goldberg, who represented defendant Lester Packingham Jr., set the stage by asserting that “the law does not operate in some sleepy First Amendment quarter. It operates and forbids speech on the very platforms on which Americans today are most likely to communicate, to organize for social change, and to petition their government.”

Justice Sonia Sotomayor questioned how broadly the state’s social media ban could be construed, noting that even The New York Times has some interactive features that could make it fit under the North Carolina law. “My problems with all of these sites today is that very few of them are purely anything anymore,” she said.

North Carolina’s senior deputy attorney general Robert Montgomery later said the state law would not bar Packingham’s access to the Times or other online news media. He also said that “plenty of people” don’t use social media.

Kagan responded incredulously. “How many people under 30 do you think don’t use these sites to get all their information? Under 35? I mean, increasingly, this is the way people get everything.”

Mark the date: February 27, 2017 may go down in history as the day that social media—from Facebook to SnapchatTwitter to  LinkedIn —entered the pantheon of expressions deserving First Amendment protection.

During a lively oral argument, U.S. Supreme Court justices discussed social media with the same respect usually reserved for colonial town criers and broadsheet newspapers that used to be the main source of news for Americans.

“It is a crucially important channel of political communication,” Justice Elena Kagan said, noting that in addition to President Donald Trump, all 50 governors and all 100 U.S. senators and all members of the House of Representatives have Twitter feeds. “It is imbedded in our culture as ways to communicate and ways to exercise our constitutional rights.”

Justice Anthony Kennedy drew an analogy between social media and the public square, where free speech rights are well-recognized. Social media, he said, are “greater than the communication you could have ever had, even in the paradigm of a public square.”

Justice Ruth Bader Ginsburg said restricting access to social media would mean “being cut off from a very large part of the marketplace of ideas. And the First Amendment includes not only the right to speak, but the right to receive information.”

Noting that courts have long protected expression “where to allow certain groups of people to speak is actually dangerous,” Justice Stephen Breyer said stifling social media would be hard to justify unless there is at least “a clear and present danger.”

The discussion came during oral argument in Packingham v. North Carolina, a First Amendment case brought by a North Carolina man who was convicted for posting on Facebook. He violated a state law that bars the use of social media by anyone on the state’s sex offender registry.

Through history, the Supreme Court has been slow to anoint new media—whether movies, television, the Internet or videogames—with strong First Amendment protection. But once it does, the court’s embrace has helped the new forms of communication to flourish without much government regulation.

When it comes to social media, however, the court has said little until Monday. In 2015, the court in Elonis v. United States ruled in favor of a Pennsylvania man arrested for threating his estranged wife on Facebook, but it skirted the First Amendment issue involved.

On Monday, the court dealt with the subject head-on, using First Amendment metrics like “overbreadth” and “strict scrutiny.” And the justices showed a level of familiarity with social media that was surprising, given that most justices, when asked, say they don’t use Twitter or Facebook. (In 2011, Justice Stephen Breyer allowed that he dabbled with social media, but wanted no followers.) The justices generally are schooled in modern media by their tech-savvy law clerks.

Stanford Law School lecturer David Goldberg, who represented defendant Lester Packingham Jr., set the stage by asserting that “the law does not operate in some sleepy First Amendment quarter. It operates and forbids speech on the very platforms on which Americans today are most likely to communicate, to organize for social change, and to petition their government.”

Justice Sonia Sotomayor questioned how broadly the state’s social media ban could be construed, noting that even The New York Times  has some interactive features that could make it fit under the North Carolina law. “My problems with all of these sites today is that very few of them are purely anything anymore,” she said.

North Carolina’s senior deputy attorney general Robert Montgomery later said the state law would not bar Packingham’s access to the Times or other online news media. He also said that “plenty of people” don’t use social media.

Kagan responded incredulously. “How many people under 30 do you think don’t use these sites to get all their information? Under 35? I mean, increasingly, this is the way people get everything.”