Monday, February 27, 2017

SCOTUS Argument Analysis by Amy Howe - Justices Skeptical About Social Media Restrictions for Sex Offenders

03/06/17 Update:
There have been so many great articles and editorials on the SCOTUS case since it was heard, so I’m adding them here for anyone who has missed them. –Mary

I wrote a post Social Media Can be a Life Saver During an Emergency, Except for 843,000 Registered Sex Offenders back on March 22, 2016 but after today’s SCOTUS oral argument it still rings true  - Mary Devoy  

Original Post:
Argument analysis: Justices skeptical about social media restrictions for sex offenders, February 27, 2017
By Amy Howe

At today’s oral argument in Packingham v. North Carolina, a challenge to a state law that imposes criminal penalties on registered sex offenders who visit social networking sites, Justice Elena Kagan suggested that social media sites like Facebook and Twitter were “incredibly important parts” of the country’s political and religious culture. People do not merely rely those sites to obtain virtually all of their information, she emphasized, but even “structure their civil community life” around them. Justice Ruth Bader Ginsburg echoed those sentiments, telling the North Carolina official defending the law that barring sex offenders from social networking sites would cut them off from “a very large part of the marketplace in ideas.” Kagan was perhaps the most vocal opponent of the law, but by the end of an hour of oral argument it seemed very possible that Ginsburg and at least three of Kagan’s other colleagues would join her in striking down the North Carolina law. 

The first half of the oral argument was not entirely smooth sailing for attorney David Goldberg, who argued on behalf of Lester Packingham. Packingham, who was required to register as a sex offender after he pleaded guilty to taking “indecent liberties” with a minor, ran afoul of the North Carolina law when he praised God on Facebook for the dismissal of his traffic tickets. Goldberg complained that the law bans “vast swaths of core First Amendment activity” that have nothing to do with the government’s professed purpose of preventing sex offenders from using social media sites to gather information that they can then use to target minors for sexual abuse. The law targets speech on some of the platforms that Americans use most often—indeed, Goldberg noted, under the law Packingham could not even use Twitter to read the myriad messages discussing his own case—and imposes punishment without regard to whether the sex offender has actually done anything wrong. 

But Goldberg ran into resistance from justices of all ideological stripes, some of whom suggested that perhaps the ban could survive if the court interpreted it narrowly—for example, as Justice Samuel Alito posited, by reading it as limited to “core social networking sites” like Facebook or Google Plus. Justice Stephen Breyer also seemed open to this possibility, telling Goldberg that perhaps the law could be interpreted as barring sex offenders from visiting a site that allows people to meet or exchange information.