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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

http://blogs.edweek.org/edweek/school_law/2017/02/us_supreme_court_weighs_bar_on.html

http://www.nationallawjournal.com/home/id=1202780006673/Social-Media-Gets-Some-Respect-from-SCOTUS-in-First-Amendment-Case

http://www.detroitnews.com/story/news/nation/2017/02/27/supreme-court-skeptical-north-carolina-sex-offender-social-media-ban/98490946/

https://www.nytimes.com/2017/02/27/us/politics/supreme-court-north-carolina-sex-offenders-social-media.html

https://www.bloomberg.com/news/audio/2017-02-27/court-debate-sex-offender-internet-rules-audio

http://www.dallasnews.com/news/crime/2017/02/27/sex-offenders-allowed-use-facebook-supreme-court-will-decide

added on 2/28

http://reason.com/blog/2017/02/28/scotus-seems-likely-to-overturn-law-bann

http://www.newsweek.com/supreme-court-north-carolina-sex-offenders-facebook-donald-trump-561812

https://www.rawstory.com/2017/02/supreme-court-casts-doubts-about-north-carolina-law-banning-sex-offenders-from-social-media/

 

 

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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

Join the discussion

    • John C.

      The article notes that “Justice Sonia Sotomayor questioned the premise that the law is necessary to prevent sexual abuse of minors. She told Montgomery that he was building ‘layer upon layer of speculation’ or statistical inferences…Where is the basis, she queried, for the inference that a sex offender like Packingham would use the Internet to commit another crime?”

      Couldn’t this same question be raised about IML? Where is the basis for the inference that a registered sex offender (particularly one who had never had physical contact with a minor) would travel to another country to engage in sex tourism or human trafficking?

      Hopefully a number of statements can com rout of this hearing that can be used in future cases.

  1. Chris F

    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

    • Lovecraft

      Told ya! I am still reading the transcrpit as well. I hope they addressed McKune v Lile, but I havent read anything about it yet.

      • Lovecraft

        Even though the outcome may be favorable to us, I am disappointed recividism and McKune v Lile wasn’t addressed or the bit about 82% of online sex crimes are commited through social media. The respondent never says they are registrants commiting these crimes online only that they occurred. In one of the briefs it states 98% of social media sex crimes are committed by non registrants. To be fair the scrunity from the justices severely impacted the amount of agruments that could be covered. Im not sure Goldberg could have done much else, he simply didnt have the time for it. That brings me to my final point or question, was the bombardment of questions by the justices done as a preventative measure to keep arguments for frightening and high or recividism out of todays argument?

        • Chris F

          It was either they did it on purpose to waste his time, or they really are just winging this and haven’t read any of the briefs. It’s like they got to work today and spent 5 minutes reading some case notes. Pathetic.

          I couldn’t believe the hypothetical and completely unrelated crap they were throwing at him and wasting his talking time. I’m really peeved at that the more I read it.

          I think this could have been a major win with references in the Justices judgement that could have paved the way to abolish the registry. Instead, I think we are left with them barely slapping the wrist of North Carolina legislature and the legislature will (yet again) merely narrow the statute the slightest bit and make it a new law all over again that will take years more to fight.

          It’s time for an over-all Bill of Attainder challenge to the entire registry scheme by the right attorney with the right clients.

        • civil rights first

          “It’s time for an over-all Bill of Attainder challenge to the entire registry scheme by the right attorney with the right clients.”

          AMEN!!!

          I have been saying this for a year now.

        • Chris F

          Here is my post from another topic on here, but is very relevant to this one.

          It references this:

          http://www.scotusblog.com/wp-content/uploads/2017/02/16-768-BIO.pdf

          It is from this article on here:

          https://all4consolaws.org/2017/02/the-transformative-potential-of-doe-v-snyder/#comment-170394

          This makes it clear that playing “whack-a-mole” and challenging one law at a time is NOT going to achieve our goals of getting rid of this registry but obviously must still happen to keep the most ridiculous laws off the books. This makes it VERY clear that challenges have to be made against the entire registration SCHEME to be effective, as any individual hardship caused by a law may not be enough to render it punishment.

          The Ex-post facto challenge will do nothing to get rid of this scheme. All that does is make it so the scheme only affects those after its creation. We need challenges to the unconstitutionality of the entire scheme as violating “cruel and unusual punishment”, “Substantive and Procedural Due Process”, “Freedom of religion and Speech”, “Bill of Attainder” and probably a half dozen other identifiable rights. We should also challenge how legislature has violated separation of powers by creating its own scheme of prevention, punishment, and deterrence that is not under the expected control of the judicial branch empowered with those objectives.

          Here is a snippet with the last sentence most enlightening:

          As with any multi-factor test, different courts
          reviewing different statutory schemes on different
          records are likely to reach different conclusions. This
          is unsurprising. In weighing the Mendoza-Martinez
          factors, it matters whether the challenged statute is
          a simple first-generation registry law similar to the
          Alaska statute in Smith, or (as here) is a modern
          super-registration statute that resembles lifelong
          probation, labels some registrants as the most
          dangerous, and severely restricts where registrants
          can live, work, or spend time with their children. It
          also matters whether the plaintiffs (as here) have
          established a record that the challenged statute
          imposes significant disabilities and restraints while
          failing to achieve its putative public safety goals. And
          it matters whether (as here) the plaintiffs challenge
          the statutory scheme as a whole, or, as in many of
          the cases petitioners cite, object only to a narrow set
          of obligations or prohibitions.

        • Lovecraft

          So what is your take on ex post facto basically ripping a hole in the registry? Our lawyer who filed the nc lawsuit said an ex post facto ruling on anything will ultimately apply to eveyone. David post seems to agree.

          https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/09/07/sex-offender-laws-and-the-6th-circuits-ex-post-facto-clause-ruling/?utm_term=.61112ccf0ef4

          From David Post on doe v snyder:
          “So what happens now?,” one might ask. A holding that the requirements may not be imposed retroactively on those whose convictions preceded SORA’s enactment would appear to keep the statutory requirements in place as to those whose convictions occurred subsequent to that date.

          But I think this decision will have broader effect. The various domains of constitutional law are not always so separate and distinct. While it is certainly true, as a technical matter, that the court’s decision does not affect non-retroactive application of the statutory requirements, it does appear to rather clearly point the way to a broader invalidation. Now that the court has held that the requirements imposed indeed constitute punishment, the Ex Post Facto Clause protects only against retroactive imposition of that punishment; but the Due Process and Equal Protection Clauses protect against arbitrary impositions of that punishment on anyone, and the court’s subsidiary holding here — that the requirements bear no rational relation to the law’s stated purpose, and that the state had no evidence that they do any good at all — may well mean that they contravene those broader protections against arbitrary and oppressive government action.

          From what I understand and have been told in order for there to be an ex post facto ruling on anything it has to be deemed punitive. If something is deemed punishment then unless it is listed in a plea or original court order it can no longer be applied to anyone regardless of date of conviction.

        • Chris F

          “From what I understand and have been told in order for there to be an ex post facto ruling on anything it has to be deemed punitive. If something is deemed punishment then unless it is listed in a plea or original court order it can no longer be applied to anyone regardless of date of conviction.”

          I hope that is true, but I don’t see how.

          Are there any examples of laws created to punish someone in addition to the punishment the court gives out where those laws were over-turned because they provided extra punishment?

          If that were the case, then why go ex-post-facto at all and just fight this as punishment alone to get it withdrawn for all?

        • ma.concerned.citizen

          I’m absolutely no expert on this at all. My guess for going ex-post-facto first is simply because it’s an easier fight to win. Once that’s done (hopefully) then you can attack the punishment aspect using the ex-post-facto ruling as leverage. Just my uneducated guess.

        • Lovecraft

          Yep thats my understanding as well. It likely wont occur immediately after an ex post facto ruling, but would be imminent shortly thereafter.

        • Lake County

          You can’t do ex-post-facto until SCOTUS changes their ruling that all this is not punishment.

        • Timmr

          SCOTUS won’t reverse their decision unless someone brings a new ex post facto charge before them and challenges the original decision, which I think will happen. New information, new argument, new perspectives are coming forward. Remain positive, my friend.

        • Lovecraft

          Well nothing has been deemed punitive yet. Everything from past cases says that this is for public safety or reglatory purposes and thats a big reason for where we are today. The judges in doe v snyder said something to the effect that the laws and statutes that have been added over time to the michigan registry put it in line or worse than some parole or probation requirements and felt punitive. I think if we can get scotus to say hey you know what, this has become punitive over the years then we might have something. If scotus doesnt accept the writ by the state what the judges said in state court will still carry some weight, but not nearly as much as if scotus echoed their sentiments.

          A side note here in case you havent read the nc lawsuit:

          The nc lawsuit that was filed against the registry a month or so ago attacks the registry from about every angle: ex post facto, due process *my personal favorite(deprivation of liberties without due process, extension of time on the registry, and fundamental fairness), 1st and 14th as to free speech, freedom of religion, burden on freedom of association, 5th and 14th (vagueness), 5th and 14th violation of fundamental liberties (right to raise ones children, right to pursue common occupations in life, right to aquire useful knowledge), and finally defamation under state law and no remedy for relief.

          Hopefully we can get something to stick. The time is coming when scotus is going to have to revisit and deal with this “regulatory” mess called the registry whether its the michigan, idaho, nc, or indiana case. The clock is ticking.

        • Timmr

          Where in the Constitution does the word PUNISHMENT exist? The fifth amendment states this: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”. Punishment does not necessarily put one in jeopardy. In American prisons for the common folk it generally does, true. Take Martha Stewart’s punishment. You think she was in any real danger in prison? Taking away liberty is traditionally considered punishment, but it doesn’t have to threaten life and limb. Being on a public shaming list and having an angry person with a hammer at your door threatens life and limb. Being near a rising river and not being able to use the only means available to get help, because you are under a social media ban, that is threatening life and limb. Not being able to get a job because you were made to incriminate yourself on the internet, and therefore you have no legal means to buy food, health insurance and shelter, that threatens life and limb. It is quite obvious that this punishment/regulation construct was meant to deny us the protections of the fifth amendment.

  2. steve

    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.

    • Biol57

      I agree Steve. I am really puzzled why Packingham’s counsel is allowing the recidivism myth to persist.

      • Les Mis Life

        May be because “frightening and high” is settled law…for example: if SCOTUS ruled that the sun circles the earth, then it would be codified into law. The problem is that there is a conflict between science and legal decision. Frightening and high is used for all lower courts and legislators, and the only group that could correct it would have to take the egg on the face in admitting that they had it wrong (contrary to popular opinion) for going on 20 years and ruined millions of lives along the way.

        • Timmr

          Yes the courts have used alternative facts at least since 2003 to justify sex offender laws. Much is now made of the president’s war on the Fourth Estate, but it is nothing new when it comes to registrant law. Although the press has been mostly a hinderance to our civil rights, there have always been those who have reported from a evidentiary rather than emotional stance. They just haven’t been listened to. It has not been just Reason magazine. Take the positions taken by the Washington Post and the New York Times against IML. Even in Smith vs. Doe some briefs questioned the high recidivism myth, but they believed the frightening and high. I would include in the Fourth Estate the many researchers and social scientists who are sources for the press. The judiciary, like the present executive branch, likes to hear its own voice both past and present. Precedent. Mere present reality or scientific testing doesn’t hold much interest. The more times something is repeated and argued, the more true it seems. I suppose defense lawyers get caught up in the culture and it is hard for them to hear anything outside of it. ASCOL’s lawyers the exception.

    • Chris F

      I read the entire thing now, and yes, it is very sad that so many “high recidivism” and other myths weren’t addressed, or the Smith V Doe pointed out as based on false information.

      I was also disappointed in how the justices didn’t seem to have read many of the briefs prior to this.

      I hope at least one of the “law clerks” they mention will point this stuff out later.

      • Shaking my head

        I agree, it bothers me that they allow the DA to spout lies so freely:

        Justice Stephen Breyer asked if you could have a statute that bars convicted swindlers from discussing money.

        “Well, swindlers are not sex offenders,” replied Montgomery. “These are some of the worst criminals, who have abused children,” and there is a high recidivism rate, the lawyer said.”

        Says who?

        • mike t

          Keep in mind the difference between Recidivism and re-offense. The recidivism rate is likely going to continue to climb proportionately to the amount of ridiculous restrictions placed on registered citizens. Anything from parole and probation violations to presence restrictions and failure to register gets added to the recidivism rate. High recidivism rates are always thrown into the debate to muddy the waters and discredit registrants. They don’t want to talk about actual re-offense rates.

  3. Joe

    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?

    • Lake County

      First, the laws protect online social media sites from being responsible for speech by their users. That may put children in danger, but it protects free speech. Liability for on-line speech is very different than the liabilities involved with real property you own or have control over. I wouldn’t want to challenge Facebook in any civil suit. They have an army of lawyers with an unlimited budget to defeat any potential lawsuits. Second, un-fenced swimming pools get you in trouble because most states have laws requiring pools to be protected from children (example: California Health and Safety Code (Section 115923)).

      • Lake County

        And the reason Facebook states you must be over the age of 13 to use their site is because the law says they cannot collect or sell information on anyone under the age of 13. And Facebook is all about the collecting and selling of your information. It’s how they make most of their money.

  4. Eric Knight

    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.

  5. Joe

    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.

    • steve

      This is a very good catch. Roberts it seems, is catching on the it’s just more than “a membership renewal” Alito is never going to vote in our favor in anything,

      • David Kennerly, Still Radioactive After All These Years!

        Well, on any cases involving sex offenders, they have scored the same: four favorable, seven unfavorable.

  6. Chris F

    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.

  7. DavidH

    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!

  8. KM

    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.

  9. James

    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.

    • 4sensiblepolicies

      I don’t know how much credence I give to the concept that the justices spend a lot of time (or even a little) pouring over the briefs. Whether they do or they don’t, it seems to me that the single most important point to make in that hearing would have been that the so-called statistics about high recidivism are so much B.S… After all, every ruling that has upheld so many registry schemes has been on the presumption that the legislature is merely carrying out its duty to protect the public – presumably against these monsters that have no control over their urges. To have not made the justices aware very clearly that we are talking about a cohort with extremely low recidivism puts our victory at great risk.

      • Chris F

        It probably comes down to the Justices clerks. I believe each one has 3 or 4 that do the actual research and discus the appropriate course of action.

        In Smith V Doe and Connecticut Dept PS V Doe 2003 the clerks were either really bad, or didn’t have enough data to counter the arguments of recidivism. I am afraid it is more about them being really bad, because they could have followed the trail back to where the “frightening and high” came from and see that it wasn’t based on actual data.

        Hopefully if the current clerks know how to use google, they will come across all they need to refute this crap.

        • DavidH

          Chris:

          Smith v. Doe wasn’t about recidivism–it was about civil regulation of people via a registry.

        • Chris F

          More specifically, it was about declaring that the registry wasn’t punishment so could apply retroactively.

          Only 6 of the 9 justices agreed though, and most likely all would have found it punishment if they didn’t think that 80% of sex offenders were going to re-offend thus giving the government great latitude in what it required of sex offenders to meet its goals. False recidivism claims have been the backbone of SCOTUS approving all this crap in the past. Let’s hope they don’t fall for it again.

        • Timmr

          There are two parts to the argument used to justify retroactive application of registration in Smith v. Doe. Frightening and high was one, the other was, no harm done to the registrant because of registration, the famous ‘this is only like a Price Club membership’ idea. Actually, there is a third argument and that is ‘does this law actual do what it is supposed to do?” The Supreme Court dodged this one by using the legitimate government interest argument.

      • DavidH

        4sensiblepolicies:

        I think we all agree that this notion of high recidivism and the thought that SO’s cant control themselves got us to where we are and that these notions are the root of all these laws; however, you can’t begin each challenge with: ‘low recidivism” as your defense.

        Imagine beginning the argument against 202.5, restricting social media; what do you say: “I and all like me are not high recidivists therefore, this law is unconstitutional, release me from jail now!”

        Nope you need to begin with a core guarantee by the constitution that one can support with the court’s previous positions and basically sculpt an argument from the world in which the court operates.

        We’ll get to recidivism one day I hope soon and yes it will undo so much of the SO industry.

        • Timmr

          I had the impression listening to the arguments in Smith vs. Doe that some of the justices simply were crafting an argument to fit something they already made up their minds about.

  10. David

    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.

  11. Curiouser

    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.

  12. David

    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!

  13. David

    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??

    • Lovecraft

      Well I live in nc and I can tell you the sheriffs office has no clue and neither does probation and parole. You literally have to guess unless you include websites that were addressed in the nc supreme court as “ample alternatives” like wral.com, pauladeen.com, glassdoor.com or yelp. What a plethora of alternatives we have here in nc! I personally have determined that the ban likely encompasses somewhere between 70 to 90% of the internet whether LE interpets that in the same way is anyones guess, but that creates another problem ambiguous and arbitrary applications of the law anytime they like . Like Chris F stated this allows nc to get a warrant to search any registrants home almost anytime they want. What’s funny is if you have read the transcript, when Montgomery was speaking he said snapchat is ok to use because it does or doesnt use links (i forget), but just last week a registrant was arrested in nc for using snapchat. Goldbergs’ ( Packinghams lawyer) best highlight imo is at the end where he references this arrest after nc stated we dont arrest people for using snapchat. Below is the actual statute for your reference.

      For the purposes of this section, a “commercial social networking Web site” is an Internet Web site that meets all of the following requirements:

      (1) Is operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site.

      (2) Facilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.

      (3) Allows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Web site.

      (4) Provides users or visitors to the commercial social networking Web site mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.

      (c) A commercial social networking Web site does not include an Internet Web site that either:

      (1) Provides only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform; or

      (2) Has as its primary purpose the facilitation of commercial transactions involving goods or services between its members or visitors.

      (d) Jurisdiction. – The offense is committed in the State for purposes of determining jurisdiction, if the transmission that constitutes the offense either originates in the State or is received in the State.

      (e) Punishment. – A violation of this section is a Class I felony. (2008-218, s. 6; 2009-570, s. 4.)

      • DavidH

        My God how can ya make that a felony!!!

      • Lovecraft

        I didnt realize this til now, but check out this part of the statute

        (d) Jurisdiction. – The offense is committed in the State for purposes of determining jurisdiction, if the transmission that constitutes the offense either originates in the State or is received in the State.

        Received in the state? Does that mean if a registrant outside nc in a state where social media is legal contacts anyone (minor or not) in nc via social media they can be found in violation of the statute and charged with a felony? It sure seems that way….now they can search registrants in any state by using this to easily get a warrant.

        • Biol57

          I read that to mean that if a NC registrant sends or receives a Facebook message while in the state of NC, it is a violation of (d).

  14. mike r

    another case where they ignore the truth and perpetuate the lie..no 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???

  15. mike r

    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…

    • Tired Of Hiding

      You are correct sir.

      The deliberately false recidivism IS the ONLY thing that should be HAMMERED in over and over and over and over and over…you get the point.

      The entire premiss of registry is based on false data (deliberate lies) and once this is exposed ALL the entire registry falls apart!

      This must be the only thing we concentrate on in this fight! Everything else will fall into place once the RECIDIVISM LIE IS CRUSHED WITH THE TRUTH!

      • Timmr

        The only reason they believe the myths is out of fear. But I don’t get it. Why don’t people in this great, rational country of ours make up myths about high recidivism in murderers. Seems like people are way more afraid of sex than being killed.

        • New Person

          Could it be possible that the Peckingham’s group is playing possum?

          No retaliation to the “high recidivism rates” spouted by the NC defense. This is said often, but not verbally and openly thwarted.

          Provided that the Justices and clerks read the briefs, then they will have so much ample information to wonder why is the NC attorney continually pushing this high recidivism rates when the contrary is shown en masse with Peckingham’s case.

          It’s like the story “The Emperor Has No Clothes”, except not on chronological order. Here, the emperor (NC Attorney) is spouting all this stuff first. Then, the people (the judges) realize after reading the briefs with ample research based work that the NC attorney is spouting nothing.

          The “high recidivism rate” is all the NC attorney can really hang his hat on. So either that one attorney is correct and the several upon several researched based works as well as Ellman’s research article that “frightening and high” rates were false are incorrect.

          hmmm… another analogy… in Star Wars (one of the episodes 1 or 2) has a jedi looking for a planet. on a 3-d screen, the planet does not exists. Therefore since it does not exists on the map, then it does not exist. So Yoda turns to a youngling jedi’s how could a planet disappear? It didn’t. It was erased. Using research information, the surrounding environment suggests that the planet is still there as the gravitation pull exists as if there were still a planet there.

          So hopefully, substantiated, researched based empirical evidence is what will give the justices that epiphany of “what high recidivism rate is being bandied about?” to go along with trampling on Peckingham’s first amendment rights.

  16. mike r

    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….

    • ONE DAY AT A TIME

      Plus know the court’s interpretation of all those laws.

    • Timmr

      No need to imagine it. We have history to picture it for us. In 1936 Victor Hugo Green published the “Negro Motorist Green Book” to help black travelers navigate in the Jim Crow era. From Wikipedia:
      ‘African-American travelers faced a variety of dangers and inconveniences, such as white-owned businesses refusing to serve them or repair their vehicles, being refused accommodation or food by white-owned hotels, and threats of physical violence and forcible expulsion from whites-only “sundown towns”. Green founded and published The Negro Motorist Green Book to tackle such problems, compiling resources “to give the Negro traveler information that will keep him from running into difficulties, embarrassments and to make his trip more enjoyable.’
      Registrants need their own Mr. Hugo to create an app that will help modern day social lepers navigate the landscape of bigotry. Yes, they can’t yet tell us apart that easily from the rest of the population –yet– but give them time, facial recognition, GPS and Real ID and there you go. History cloning itself.

    • Tired Of Hiding

      Indeed…the bottom line is that we no longer have the freedom of movement.

      We are not locked in a jail or cage but we might as well be since we are truly limited in the places we can go, visit, or live! We are in a virtual jail and in some cases it is fing lifetime sentence!

      That’s beyond cruel and unusual PUNISHMENT. It is downright inhuman. It is mental abuse on a grand scale with the discrimination and public shaming never stopping!

      It is simply torture of American citizens by the US government – PERIOD

  17. Robert

    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.

  18. Les Mis Life

    I hope the justices have a look at nytimes.com 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

    • Chris F

      I was skeptical at first, but now I think this will be 8-0 in our favor.

      Even if a Justice wants to ignore the constitution, it will be a black mark on their record and embarrassing with their peers to side with a minority that thinks its OK to squash an individual’s freedom of speech even if they have done something horrible.

      My biggest fear is that NC will simply re-make the law a little more tailored to sex crimes against minors, and it will take another 8 years to get it struck down. The whack-a-mole won’t stop until the entire registration scheme can be taken down, and only then if the Justices declare anything unconstitutional that is not tailored to the individual circumstances and kept under the judicial over site that allows use of our normal appeals process. I don’t think judge’s realize how much this scheme was created to completely bypass their authority.

      • New Person

        Isn’t this akin to Rosa Parks and her freedom to sit anywhere on the bus?

        The best seats on the bus are at the front. The worst is the back of the bus. Where exactly is the threshold between the back and the front?

        Similarly, twitter and facebook are at the top of the online community bus of information. Here, a registrant is regulated to the back of the bus with whatever scraps you are only given. Like Rosa Parks, there exists no criminal intent here, but a law stating blacks sit at the back of the bus. Peckingham is a free person (no longer in jail, parole, or probation), but he still has certain restrictions on where he can sit in the community bus of information. Is Peckingham not an equal citizen privy to all information and viewpoints or just the selected few designated by the law… you know.. like where you can sit back in Rosa Park’s era?

  19. Stephen

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

  20. mike r

    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….

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