SCOTUS: Argument analysis – Justices skeptical about social media restrictions for sex offenders

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. Analysis

Hearing Transcript

Check here for audio – posted Friday after the Hearing

Related Media

added on 2/28




Also heard on February 27

Esquivel-Quintana v. Sessions

Issue: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.

Case Documents – Hearing Transcript

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The argument transcripts from Packingham v. NC is here:

This is good news!

I’ve been reading the transcript (not done yet), and I love that my biggest complaint of what hasn’t been argued before in Packingham, was argued. I wanted something said about how someone with nefarious intent would simply use a fake gmail account and fake facebook account, so the law effectively only punishes law abiding sex offenders and does nothing toward its stated goals.

Here is the part I found so far that comes close as argued by the Packingham lawyer:

The — the premise — one of the things that
the State argues about effectiveness is that this law
will prevent people from doing something. The only way
it prevents people is by punishing them and deterring
them. It — it doesn’t enable the State to find people,
and — and as Justice Kennedy was asking about
monitoring, that’s a way that you can actually detect
what people are up to.
The nature of this law is that it finds —
it’s most likely to find the people who are doing
nothing wrong, who have — are doing innocent things.

And if you envision the subcategory of predators who are
using the — these sites, they — and lurking on these
sites, they are going to do their very best to hide
their identity

Much mention of high recidivism. The cross over statement that if you rape an adult there is a good chance you will rape a child…That’s a new one! When will somebody argue that the recidivism rates being quoted are false.

What I will never understand is…. why are sites like Facebook not held liable for any injury suffered by users on their (commercial business) site? With their (unenforced) age minimum of 13 years of age they implicitly acknowledge that their product is inappropriate for and poses inherent harm to young users, of any minor age.

Just like the owner of an unsecured swimming pool is held responsible for the toddler wandering into his un-fenced yard and drowning in the deep end, just like the construction site owner is held liable for the beer drinking / pot smoking / trespassing teenagers hurting themselves on the site.

The onus on public safety is with the owner / operator. Why not here?

One bad thing about this hearing:

Senior Deputy Attorney General Robert Montgomery for North Carolina said sex offenders have alternative ways to express their first amendment rights.

The law, he said, is a protection for children against sex offenders who have a high rate of repeat offenses.

WHY wasn’t this rebutted?? If one thing could have shown the ridiculousness of the law, this was it. I realize the lawyer for Packingham was going for the win for his client, but this would have virtually guaranteed it. UNFORTUNATELY, this means that if left unchallenged, no matter the outcome of the case, there is an official “stipulation” that sex offenders have a “high rate of repeat offenses.” I am ANGRY.

CHIEF JUSTICE ROBERTS: Is — is a provision like this ever added to the sentences as opposed to following from the sex registry?
MR. MONTGOMERY: As — as part of probation, there can be certainly those sorts of provisions added for the length of parole, for instance, or probation. They can be a condition. (p. 42)

In other words…. PUNISHMENT.

Thank you very much. Move along… Nothing more to see here.

Oh crap!

I just realized the REAL entire reason behind the creation and push to keep this law unchanged by North Carolina.

This is a “backdoor” way to get a warrant to search a sex offenders computer. All they need is something defined as a “crime” that they can use as justification to get a warrant to search their computer in order to prove they accessed social media. Anything they find for other crimes, like kiddie porn, they are then free to prosecute for that crime too.

I was so focused on the absurdity of the law I never thought to look for the real reason for it, other than the normal harassment of sex offender. They actually figured out a way to bypass our rights against an illegal search and seizure disguised as saving children from online predators!

If the state provided data to the Justices showing they prosecuted many of those accused of accessing social media for kiddie porn, then the Justices may see through the fake law. If the state provides data to show there really aren’t any nefarious issues by these “caught” sex offenders on social media, then they will see the law doesn’t meet any identified purpose. The state can’t win by disclosing anything, so they don’t.

I’m booking this as a win. Roberts did everything short of asking Golberg to draft the legislation as he sees fit. Again when it comes down to it government attorney’s seem like amatures–if you want to have something as stupid as NC’s social media ban on the books–you wait until a grizzly case comes up–not a sympathetic case like this! Besides Goldberg is a hot attorney

The State attorney was amateurish, not unlike the government’s lawyer in the IML case: show up before a deadbeat judge and come up with the first thing stupid argument that comes to your mind: “no standing;”

encouraging the court is hearing sex cases, finally! I think they (the justices) are open. can’t wait until the 6th circuit’s case gets there–we’ll be talking recidivism at that hearing!

I have a serious question. Where does the State of North Carolina get this information from:

“And the fact is, the Department of Justice has reported that
there’s a 50 to 60 percent crossover from adult victim
rapists to children.”

He said that to the Justices today. I want to know if that’s bullshit because it sure smells that way.

Do not base everything on the oral arguments, which are merely 1-hour, versus the many briefs filed. There were several amici curiae briefs filed, including by the Association for the Treatment of Sexual Abusers, who argued that the rates of recidivism were actually very low. That is likely going to have considerable sway on the justices.

Absurd! North Carolina “state’s lawyer said the law deals with the virtual world in the same way that states keep sex offenders out of playgrounds and other places children visit.” Well, then lets extend that argument : in real life, RCs go to malls, businesses, political rallies, bookstores and newstands, grocery stores, we walk by children at church, on sidewalks, etc. Banning RCs from FB is the equivalent b/c these days, the great majority of FB has NOTHING to do with children – instead, it covers restaurants and other businesses, news stories, politics, family & friends photo albums, etc.

The high recidivism argument is pretty much the only tool the government has it its box. What other argument can it it make? Without the blind fear and terror of the predator lurking in the shadows, the basis for all of these laws falls apart. This lie is what sets sx offenses apart, in the eyes of the powers that be, from ANY OTHER offense. It is the only way they can continue to justify the “regulatory” registration of citizens. They must hammer this argument at every opportunity. Is SCOTUS finally seeing it for what it is? A bald-faced lie based upon a debunked and non-scientific magazine article? We have to hope so.

Curiouser, “The high recidivism argument is pretty much the only tool the government has it its box. ” You are absolutely correct – the “high recidivism rate” argument MUST refuted, countered, and defeated!

I’m curious what exactly constitutes a “social media website”… And with new websites being started all the time, will N.C. (or whoever) begin maintaining and posting a list of all existing social media sites? Craigslist has “community” and “personals” categories – does that make it a social media site??

another case where they ignore the truth and perpetuate the case should be brought without addressing the justification issues..without the high recidivism rates the state has no case….how hard is it to understand that???

wow I kumped the gun on this one..I am very impressed with these briefs.
I really hope they pound home the recidivism issues and the justification issue…on the whole these are incredibly powerful briefs…

can you imagine if you wanted to travel the country just to visit freinds or family or to simply tour the country in order to be compliant with all the different laws and ordinances would be virtually impossible. you would have to know exactly what laws or ordinances that not only each state has that your visiting or passing through but all the county and local ordinances that can change by the minute…impossible….

I find it unlikely SCOTUS will address recidivism in this case. The transcript shows that the justices are focused, concerned on the “overbreadth” of NC’s application of this law. If SCOTUS finds NC is overly broad in the law, recidivism becomes moot and probably not be addressed here.

It is Montgomery for NC who tries to bait the justices into a recidivism justification but no justice takes his bait. Justice Sotomayor slams him for “layer on layer of speculation or statistical inference” and Justice Breyer slams Montgomery for his inference to dangerousness of SOs. Even though Montgomery makes the high recidivism argument on record, I don’t see where any justice accepts his position.

One could think the other justices may be acquiescing by allowing NC’s recidivism argument to happen on record by staying silent. But NC was not persuasive. If NC was persuasive, there would have been more discussion. Quite likely that the justices are very much aware of the rising tide of data against high recidivism from some of the discussion here even if it is indirect discussion by the suggestions of speculation and inferences.

Seems that most justices believe that NC had many opportunities to narrow this law by suggesting application through parole or probation instead an attempt for a lifetime ban through the registry as NC has chosen and defended so vigorously. It appears that the law fails on being overly broad. The “frightening and high” can will be kicked down the road a bit longer before a discussion on record by the high court.

I hope the justices have a look at and see the twitter and Facebook options under every story.

All this knowing that if nytimes wanted, they could ban from even being able to get the subscription.

I guess a subscription to the nytimes isn’t as necessary as my price club membership.

I think this goes our way 6-2

NC will just re-right the law to their benefit. Keep in Mind face book still won’t allow us to use it.

yep recidivism rates recidivism rates, recidivism rates,..dont even mention rearrest rates at all ever..pound home that rearrest rates are not recidivism rates…dont mention any number such as the 13% of whatever group of people they referred to in the brief…pound home the justification issue and the Equal Protection issue hard over and over again force the opposition as well as the courts to respond to this argument….they mention gun laws..gun laws are no where near these types of laws..gun laws are universal and anyone can understand if your a felon dont own or possess a firearm..very unambiguous..even though I believe that decision could be challenged but thats for another csse…recidivism, recidivism, recidivism justification, justification, equality equality, those are the issues…
just imagine if they made a drunk driving registry and made everyone ever convicted or even arrested for dui do in person registration at least once a year and install ignition interlocks in each and evety vehicle they own or drive…way more rational and thestate wouldn’t even have to lie and make up high and frightening recidivism rates…these are the arguments that can repeal the registration scheme as it is….but these are the best briefs I’ve read and I know someone is going to take on the state and the courts frightening and high recidivism rate and force their hand….