Social media use has become ubiquitous in the United States. The website Statista estimates that over 214 million Americans use Facebook and over 68 million Americans use Twitter. With numerous other social media platforms available, communication through social media has become an integral part of 21st century life.

The extent the government may control or otherwise impinge on social media use under the Constitution is unsettled. This issue has recently arisen in Illinois in connection with the probation of juvenile defendants. Specifically, the question has been raised whether a probation order can limit the social media access of the defendant. Two cases decided last year, In re Omar F.¹ and In re R.H.², resulted in opposite answers to that question.

Before comparing those two cases, a brief history of the constitutional rights of minors needs to be discussed. The concept that the protections of the Bill of Rights apply to minors has existed and persisted for almost a hundred years.³ However, it is also firmly established that the constitutional rights of minors are not fully coextensive with the rights of adults.⁴ This is because the state’s authority over children’s activities is broader than over like actions of adults.⁵

Bellotti v. Baird specifically discusses the constitutional rights for minors who are in the criminal system. Some rights for minors are essentially the same as for adults, such as right of counsel, the right to be proven guilty by beyond a reasonable doubt, the right to confront accusers, and the right against self-incrimination. However, minors are not entitled to trial by jury and the hearings do not have to conform to adult criminal trials or even administrative hearings as to format and evidence. Essentially, minors are entitled to rights that affect due process, but other criminal rights are not guaranteed.⁶

As to the two recent Illinois cases, In re Omar F. was the earlier decision. In that case, the minor defendant was found to have committed armed robbery with a firearm. Part of his sentence included a probation requirement that he stay away from gangs, guns, and drugs, and that he remove any reference to them from his social media. The juvenile argued that these provisions violated his constitutional rights of free speech and association.

While the court upheld the criminal conviction, it reversed as to these particular probationary requirements. The Omar court noted that trial courts have broad discretion to impose probation conditions, but that that discretion must be reasonable. The court found that the conditions imposed were overbroad and not narrowly tailored, and thus those provisions were unreasonable.

The Omar court observed that while the Juvenile Court Act⁷ does not specifically permit limitations to social media, it is reasonable to understand limitations on contact to include limitations on social media access or content. The court also determined that placing limitations on contact with gang members is validly connected to the goal of rehabilitation.

The Omar court noted that parameters that are too vague, broad or general will not pass constitutional muster. The court decided that the minor could be in violation of the probationary provisions doing ordinary or even constitutionally protected activities. The court reversed the probationary restrictions and remanded that portion of the decision to the trial court to consider whether such social media restrictions were necessary, and if so, to what extent limitations and exceptions to the restrictions could be applied.

In re R.H. was decided a couple of months after In re Omar F. in another division of the First District. Similar to Omar F., part of the probation requirement was the removal of any references to gangs, guns or drugs on the juvenile offender’s social media sites. Unlike Omar F., the R.H. court found those provisions to be constitutional content-based restrictions on free speech.

The R.H. court noted that the concept of parens patriae, the duty of the state to protect minors, is codified in the Juvenile Court Act. That court also discussed the limitations on constitutional protections that minors have in the criminal court system as deliberated upon in Bellotti. The R.H. court determined that the state has a compelling interest in reformation and rehabilitation and that the limits on social media advance that interest.

The R.H. court then questioned whether the restrictions were narrowly tailored to address that interest. The court decided that the probation requirements specifically related to whether the minor could be rehabilitated. The court stated it would be absurd to think that a minor could be steered to a productive life while ignoring the online activity of that minor. Based on the above, the R.H. court held that the probation limitations, as applied to a juvenile offender, were not violations of the constitutional rights of that minor.

There are two important factual differences between these two cases. In Omar F., the minor was appealing the probation restrictions in total, while in R.H. the minor specifically appealed the social media restrictions. A violation for innocent conduct on social media, while possible, would be less likely than an innocent violation of the physical contact provision of the probationary requirements.

Further, in Omar F., there was only a loose affiliation shown between the minor and a gang. However, in R.H., the minor actively used social media to flaunt his gang membership and drug use while also actively taunting other gang members. These differences, both procedurally and substantively, could have been significant factors in the differing results.

Overall, the law related to restrictions to social media for juvenile offenders is still in its infancy. The only cases to date are in the First District, and all of those are less than a year old. However, the trend in these early cases appears to be that some limitations on access to social media for delinquent minors are acceptable. The future should bring more orders for social media restrictions by the trial courts and more appeals of those decisions until the constitutionality of these First Amendment issues are ultimately decided.