tv Packingham v. North Carolina Oral Argument CSPAN March 4, 2017 3:37am-4:41am EST
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heard oral argument questioning whether a state law registering sex offenders from being on social media is a violation of free speech. in north carolina, they cannot access facebook, twitter or any other social networking website. the following argument is one hour. chief justice roberts: we'll hear argument first this morning in case 15-1194, packingham v. north carolina. mr. goldberg. mr. goldberg: mr. chief justice, and may it please the court. there are three principal features of north carolina's law
that make it a stark abridgement of the freedom of speech. first, section 202.5 reaches vast swaths of core first amendment activity that is totally unrelated to the government's preventative purpose. mr. packingham is not accused of communicating with or viewing the profile of a minor. he violated section 202.5 by speaking to his friends and family about his experience in traffic court. and if today he were to view or respond to any of the thousands of twitter messages about his case in this court, that would be a felony. second, 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. third, section 202.5. justice kennedy: please go ahead. please go ahead. mr. goldberg: -- is a criminal law, your honor, that imposes punishment for protected first amendment activity without any regard to individual culpability or lack of culpability. justice kennedy: could a state impose this restriction as a condition of parole? mr. goldberg: your honor, i
think they have much more authority to impose things as a condition of parole, and -- and states do this all the time, and they -- they limit people's first amendment rights. i think that they -- if you had something that was as sweeping as this, for life, for anybody who had committed a sex offense, i don't think they could do that. justice ginsburg: but -- justice kagan: didn't -- justice ginsburg: but they are -- chief justice roberts: justice ginsburg. justice ginsburg: the most fundamental right is taken away from ex-fundamentals by some states prohibit ex-felons from voting. some states in the federal government prohibits keeping and bearing arms. those are constitutional rights. mr. goldberg: right, your honor. so both of those rights are different from the first amendment. they are equally fundamental, but they are different. so in the case of voting, north carolina does not take away -- north carolina draws the line at people who have completed their parole, their period of supervised release.
but in richardson v. ramirez, the court looked to the text and history and tradition and said in section 2 of the 14th amendment there was affirmative sanction for felon disenfranchisement. if you look at that same section, which dealt with the people who rebelled in the civil war, you didn't need to restore their first amendment rights. and with the second amendment, when somebody is convicted of a crime, they immediately lose their second amendment rights. they don't lose their first amendment rights. so in the simon & schuster case, this court vindicated the rights of somebody who was a serial killer who wanted to write from prison, where he was serving a life sentence for murder, about his experience. so -- chief justice roberts: it's a little difficult to -- you said look at the text and history. we don't have a lot of history here concerning access to websites and all the sort of things we're dealing with here. so i don't think that's a very
useful guide. mr. goldberg: i agree, your honor. but i think when you look at what -- when we talk about the history, the history is there isn't a tradition or a history of taking away people's first amendment rights. when the court said first amendment rights are inalienable, it has meaning when people -- chief justice roberts: my point is, though, you don't have a lot of history of having -- having such sites or access where they can provide broad access to minors of the sort that is problematic with respect to this individual. mr. goldberg: well, i don't disagree. we know as with violent video games, as with any manner of new technologies the court has confronted, there isn't -- there isn't a framing era or reconstruction-era analogue. but there is no history when you talk about all of the things that the state historically has restricted, they never said you lose your right to publish a newspaper because you've been convicted. justice alito: suppose we try to
translate this into terms that would be familiar at the time of the adoption of the first amendment. so suppose the state enacted a law prohibiting anyone convicted of kidnapping children from visiting a nursery school. would that be a violation of the first amendment? mr. goldberg: i don't think so, your honor. obviously, at the framing, the first amendment didn't apply to the states. but the -- justice alito: all right. suppose it was -- mr. goldberg: all right. justice alito: --i n the district of columbia. mr. goldberg: so, your honor, the -- a kindergarten -- first of all, i don't know that there's a first amendment right to visit a kindergarten. and that's fundamental here. this law only applies in the places where everything that happens is a first amendment activity, whether it's receiving information, speaking, associating, petitioning. justice ginsburg: suppose -- mr. goldberg: when some -- justice ginsburg: suppose the law simply said that someone who
was a sex offender could not communicate with a minor on social media. would you agree that that would be constitutional? mr. goldberg: well, i think my first answer is that it would be much less restrictive, and that shows why this law is unconstitutional, right? and that's exactly what the prosecutor -- justice ginsburg: well -- mr. goldberg: if you look at the -- justice ginsburg: well, there's a -- there's a concern here. mr. goldberg: sure. justice ginsburg: for the safety of children. so i'm asking you -- yes, of course, it's less restrictive. would it be constitutional? mr. goldberg: i think -- justice ginsburg: -- and no communication with a minor? mr. goldberg: so, i think it probably would be, your honor. i think that the difference here is if you take the test, the narrow-tailoring test, which is fundamentally a -- this court had said in ward, a quantitative test, and you say, what percentage of what you suppress implicates the interest? when you're talking about communicating with minors or viewing the pages of minors, that is going to the heartland of the protective interests that the state is asserting. but here, everything that
they're suppressing is, as we've said, it's indifferent as to whether it's core speech. obviously, petitioner was convicted for saying, "thank you, jesus, god is good" about a parking ticket to an audience. justice alito: but you think that even as narrowly tailored as justice ginsburg's example, so it would be a crime for a convicted sex offender -- or let's say someone who was convicted previously of committing a sex offense using the internet from contacting on the internet a person who is known by that person to be a minor without the consent of the parents of the minor? that would be a violation of the first amendment? mr. goldberg: no. i -- i said i think that would be constitutional, your honor. justice alito: oh, i thought you said it wouldn't be. mr. goldberg: i'm sorry if i -- if i wasn't clear about that. i would still say there are narrow-tailoring questions. i'm not here to say that particular hypothetical law, that one of the concerns with this law that i think you've -- you've handled by narrowing it to a subset of people, this applies to everybody on the registry, and it applies in a
essentially on a statistical basis on the theory that as a collective, they have a higher rate of recidivism than people on average. and i think this court's first amendment cases say that's a very problematic assumption to just and especially with a population like this that is so heterogeneous and that is constantly being evaluated on an individualized basis. it's not clear to me why you would take people's first amendment rights away for life if the theory -- justice sotomayor: what do you think your best argument is? is this statute too overbroad? does it fail scrutiny, whatever level we adopt? what's the -- mr. goldberg: well, i think -- justice sotomayor: what do you think -- i know you say all of those things. mr. goldberg: yes. all of the above, your honor. and this is not a case where the level of scrutiny is going to
make a difference. justice kennedy: elizabeth barrett browning, "let me count the ways." mr. goldberg: exactly, your honor. so -- justice kennedy: but let me ask you, suppose there were an app, a program in which officers could monitor your video and your and your cyber -- and your cyber equipment and disclose if barrett browning, "let me count the ways." mr. goldberg: exactly, your honor. so -- you are communicating with minors. could that be a law that every -- that every convicted person has to consent to that app and to that surveillance? mr. goldberg: well, i think that goes to the question of which you don't need to answer and i want to answer justice sotomayor's question as well in this case. what does the status of being a registrant mean in terms of somebody's constitutional rights? i think that is clearly a much less restrictive from a first amendment perspective, because then, again, people like mr. packingham, anybody who wants to do the things that are harmless and fully protected is able to do it. people have and it is effective
detection and deterrent. so from a first amendment perspective, that's a home run. there is a fourth amendment question there, which is, ordinarily, once you're done with supervised release, you have full -- justice kennedy: first amendment for home run, who hit the home run? mr. goldberg: i'm saying for the state, your honor. i think it does everything. it's perfectly tailored in a certain sense, except for the state has a sense of what you may be up to, which is a concern. but, essentially, they're able to deter people, detect people. and the people who want to speak and exercise their core first amendment rights. justice kagan: well, i take it -- mr. goldberg: -- have no problem whatsoever. justice kagan: i take it, mr. goldberg, that a part of what the state is saying here is that it doesn't have the capacity to do that. it doesn't have the capacity to check message-by-message or click-by-click what a person is doing. and in the absence of that, that some kind of prophylactic remedy is needed. and that's not unheard of in first amendment law. i mean, if you think of a case like burson, which is the 50 feet with -- mr. goldberg: sure. justice kagan: -- in the polling places, that's kind of a prophylactic rule.
so why wouldn't the same be appropriate here? mr. goldberg: well, your honor, we -- obviously, there are times when prophylactic rules are permissible under the first amendment. mr. packingham, when he was convicted, got a condition that said you shall not have any contact with the specific victim of this crime. that would -- otherwise, if that were applied to you or me, that would be an abridgement of our freedom of speech. so there's no general rule. the court has said repeatedly that you should be suspicious of prophylactic rules because, ordinarily, you don't want to -- you want to allow people to speak. but even as we've been talking about rules like that are focused on teenagers on the internet and having specific contact with them, those are prophylactic rules too. so i don't think it's -- the question is, can you do it at the first step? and i think -- justice breyer: what is -- what was your answer?
which i forget. a statute prohibits a convicted sex offender from being -- spending more than five minutes at a children's playground. is that constitutional or not? mr. goldberg: i think that's constitutional because -- justice breyer: all right. mr. goldberg: i don't -- justice breyer: if that's constitutional, instead of what most of the briefs do, is interpret the statute as broadly as possible, this is a facial challenge. what about trying to interpret it as narrowly as possible? and as narrowly as possible, it seems to me a necessary condition is that a violator cannot go to a site that facilitates the social introduction between two or more persons, and these are children they're talking about, i guess -- for two or more persons for the purposes of friendship, meeting other persons, or information exchanges. so we have to say "or related information exchanges." and now we have a definition that sounds as if they're talking about dating sites, or
it sounds as if they're talking about related play group sites, if you take younger children. and is it possible to read it that way? and if you do read it that way, is it constitutional? mr. goldberg: well, your honor, a couple points. the first answer to the playground, we -- i think you start with, what is the first amendment right that is being abridged? i'm not sure that i see a first amendment right being abridged. justice breyer: yeah. but that's what i wanted to be -- i wanted to get your answer, and i think i have that. abridged? i'm not sure that i see a first amendment right being abridged. mr. goldberg: and then -- justice breyer: but i'm really interested in the narrow possibility of interpreting it narrowly, as i said. and on that basis, it's facially constitutional, though it could be applied unconstitutionally. that's what i want your answer mr. goldberg: and then -- to. mr. goldberg: so, your honor, this is a criminal case. it doesn't arise as a civil suit in district court. this is first and foremost an as-applied challenge because the relief that we're seeking is to overturn the -- justice breyer: you're not --
you're not attacking the statute. you're only attacking it applied to your client? mr. goldberg: in a criminal case, you, the court has the power to say, and i think it's appropriate in this case that this, the problem here is the problem for every application. and that's what we've argued. justice breyer: ok. mr. goldberg: and clearly -- justice breyer: that's -- then we're back to my question. so i'm treating it as an as-applied challenge. i don't want to just repeat the question. mr. goldberg: right. justice breyer: i want to get your answer to the question. mr. goldberg: right. so the answer is, your honor, that this -- that narrow construction, i'm not sure that that's possible, and that narrow construction isn't going to be, in this case, make any difference, because as i understand your hypothetical statute or construction, that is
not -- mr. packingham did not violate the law, but -- justice breyer: wait don't you see, all i'm doing is reading one word before information exchange. and the word i'm reading is related information exchange. and as so interpreted, that clause, too, which you're much more familiar with than i am -- mr. goldberg: sure. justice breyer: -- seems to be talking about dating sites or the lower age level equivalent. mr. goldberg: i don't -- justice breyer: if that's -- it does what it says, facilities the social introduction between two or more persons for the purposes of friendship, meeting other persons or related information exchanges. i've now got it a social dating or equivalent site. mr. goldberg: right. justice breyer: i think i can say that. now, if i say that, is it constitutional? that's what i'm trying to get your answer to. mr. goldberg: if it were limited to dating sites, i'm assuming that it is constitutional, your honor. i don't think the state has ever said that this is about dating sites. they say there's a category of -- justice ginsburg: well, they couldn't because of your case. mr. goldberg: right. exactly. justice ginsburg: so your case involved boasting about getting off a traffic ticket. mr. goldberg: right. so that, that is my first and most important point, that mr. packingham was not on a dating
site. justice breyer: so then the answer to this would be they have not applied it that way here, and given the way they've applied it here, they can't do that. mr. goldberg: i don't -- justice breyer: now, we're going to have 40 other cases involved. mr. goldberg: i don't think they've ever applied it. i think the main focus -- dating sites tend to have age restrictions that go, apply only to adults and so i think it's their position that those are excluded from this. i -- they're -- i think the state's position, and you can hear from them, they've never proposed that as a construction because they want to go after these sites, the classic social-networking sites. justice alito: yeah, the interpretation that justice breyer -- the language that justice breyer is referring to and other language in this statute, i think, could, for the purpose of avoiding first amendment problems, be limited to core social networking sites, including facebook and things like facebook, google plus, that sort of thing, and excluding a lot of the other sites that the electronic frontier says are included, like the "new york times" and betty crocker and
things like that. so it would be limited just to social networking sites. would you agree that it could be read at using constitutional avoidance, it could be narrowed to at least those? mr. goldberg: so honestly, your honor, i'm not sure that it can, but it's very important for the constitutional question that that is irrelevant. and this goes back to justice sotomayor's question, which was what is how do we win this case? what is the -- what is the biggest problem with this statute? and the biggest problem is -- justice alito: well, just to put it in context. it is important for purposes of an as-applied challenge because if what your -- what your client used was a social -- was facebook, right? mr. goldberg: right. justice alito: ok. mr. goldberg: so -- justice alito: even if it were limited to to those -- mr. goldberg: right. justice alito: you would say it's unconstitutional. mr. goldberg: our positionand for the very reason we've talked about, which is that this -- just like the law in the jews
for jesus airport case from los angeles that said no first amendment activity in this place, this is a law that says no first amendment activity, and it says it indiscriminate, so -- justice sotomayor: counsel, i mean, one of my problems with all of these sites today is that none of them are purely or very few of them are purely anything anymore. mr. goldberg: right. justice sotomayor: take something like linkedin, which many, many people in our society today are looking for jobs there, but high school students are permitted to look for jobs it says it indiscriminate, so -- justice sotomayor: counsel, i mean, one of my problems with all of these sites today is that and to post their data, personal data on that site. so, is that traditional social media or not? mr. goldberg: i think the state says that it is because it meets the definition. i just want to get back to justice alito's question -- justice sotomayor: but that's my point, which is -- i'm -- facebook, many people, many businesses are using it for commercial advertising. mr. goldberg: right. and that's very true and there was another defendant who was
prosecuted alongside mr. packingham who was an i.t. person, mr. christian johnson, and he lost his job because his employer said it's impossible for you to do your job if you can't get on these sites, so -- justice sotomayor: even if you don't -- justice kennedy: well, all of -- all of these questions implicate what justice sotomayor asked earlier and i and others interrupted you. what is the category that we use? if we rule for you, we say this statute is a violation of the first amendment because, what -- what are the basic rules or the basic -- mr. goldberg: so the basic rules -- justice kennedy: -- doctrinal choices you offer us to say why this is unconstitutional? mr. goldberg: sure. so the most straightforward, basic doctrinal basis to say it's not narrowly tailored and stop there or overbroad, which is the flip side. sometimes overbroad is a confusing word because it has this third-party standing dimension. in the airport case, it was used to say this goes way too far because it prohibits lots of first amendment speech. so if you just take the word
narrow tailoring test or you take the test in frisby, in taxpayers v. vincent where you say does this -- is the theory of this law that it restricts speech on the possibility that that will lead to some other harm, that inherently is not going to be a narrowly tailored law. or you can look at it the way weir did which said let's look at how much of is protected activity is suppressed, how much of that implicates this purpose and, again, that's a really straightforward way. now that we think, and our brief argues that there are multiple prongs. if you go through every prong of the word "analysis," this is a really stark case in terms of alternative channels. this forecloses, as i said, some of the most important channels of communication in our society. so you could do that, you could say that too. but what the court said in
mccullen is once you get -- if it's not narrowly tailored, that then it's unconstitutional and i don't see -- chief justice roberts: well, one of the -- i mean, under narrow tailoring, i think it's incumbent upon you to come up with a narrow, more narrowly tailored alternative. so if you wanted to -- you're in the north carolina legislature and you're told you can't do this, what would you do as the this, what would you do as the most effective alternative? mr. goldberg: well, your honor, i think the opinion in mccullen said it was not incumbent on the challenger to come up with the alternative, but here it -- it said the state has to show that it seriously considered alternatives, but -- justice ginsburg: what -- i thought you agreed with me earlier that north carolina could ban communicating with a minor -- mr. goldberg: right. justice ginsburg: -- via social media. mr. goldberg: right. so i think that -- chief justice roberts: well, i guess in response to that is, well, how do you know that it's, that it's a minor or how is the -- i mean, i assume that minors can put on -- they don't have to have their age in their e-mail. they don't have to communicate it in the text of the -- mr. goldberg: right, so --
chief justice roberts: -- message that's put on the site. so i think the response might be that that's not terribly effective. two ancestors to that. first of all, if you look at the closing argument on the da in --s case, the da lays out again, this is not a case where we have come up with some exotic theory about how you can narrow the slot. the da says to the jury in order to convict, you may not like this law, you may prefer a law that says don't have specific contact on facebook with a minor children. or a law that says don't say specific things that would lawap teenagers and this doesn't say that. but even if you don't agree with it, don't like it, the losses you can't access. >> maybe it says it because it doesn't work -- maybe it doesn't say because it doesn't work.
the be the legislature didn't enact it is it concluded it would be effective. mr. goldberg: your honor, i think it would be ineffective or effective the same way this law is or isn't. one of the things 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 doesn't enable the state defined -- define people. o fine people. the nature of this law is that it is most likely to find the people who are doing nothing wrong that are doing innocent thiss and if you envision subcategory of creditors who are predatorse sites -- who are using the sites, they are going to do their very best to hide their identity. >> why was your client using an
alias if he wasn't lurking or otherwise trying to stay hidden? he goldberg: your honor, wasn't lurking. i don't think there is any basis for saying he was lurking because they looked at his hard drive, got information from facebook, there are china -- crimes they could have charged somethingnd if he did , he would have been prosecuted for something like that. the alias he was using, and i will put that in scare quotes, the name that he goes by and his middle name. picture and hes had a public profile that linked to his father whose name is weather --acking -- . packingham. he was posting publicly about
something about religion and his experience in court. justice sotomayor: to justice is there auestion, capacity to determine the age of a user, meaning is there a way for the state to be able to track whether or not a potential defendant is actually in a minor?tion with mr. goldberg: they are ready have a law about communicating using the internet with a minor. that is a different law. their theory of this case is about the power to gather information. the second thing is that people's ages are verified by facebook and in the prosecution, if the assumption was that the person was younger than eight 18, they would be able to verify the record.
>> thank you council. -- thank you, counsel. esther montgomery question mark -- mr. montgomery? many states have laws prohibiting sex offenders from being at physical cases where children congregate. schools, playgrounds, daters and parts. in 2008, north carolina decided to prohibit sex offenders from being in virtual places where children congregate online. specifically commercial social networking websites. north carolina past section 202.5 to cover the people most likely to sexually assault children. unlike some of the other alternatives -- unlike the alternatives proposed, this law is enforceable and effective. that was setings early --
>> social networking site's facebook obviously, it includes link in, it includes twitter is that right? >> that would be correct. it person in: so this situation cannot go want to the president's twitter account to find out what the president is saying today? mr. montgomery: that is correct. notice: -- justice kagan: only in fact everybody uses twitter. all 50 governors, all 100 senators, every member of the house has a twitter account. this has become a crucially important channel of political communication and a person couldn't go on to those sites and find out what these members of our government are thinking or saying or doing, is that right? esther montgomery: that is right. however, there are alternatives. as far as twitter --
>> i don't know if we have or had a public square, but assuming we had a public square 100 years ago, would you say this person can't go into the public square? the sites that justice kagan has described and their utility and the extent of their coverage? greater than the communication you can have never had even in the paradigm of the public square? in essence,ry: states have said sex offenders can't go into the public square, you can't going to parks or near playgrounds. why are we trying to limit that? people all the time want to speak to 18-year-olds, 17-year-olds, it doesn't limit to the sex problems with children. this is everybody. has had aybody who sex offense and i take it you are rejecting any effort that i might have hypothetically made to narrow the statute and you
are saying, nowhere, because children are everywhere. what is the difference? i want to go to a park and want to talk to a 16-year-old about helping get some patient -- petition drives. i can make endless examples. so what is the basis here? the state has a reason, yeah, it does. does it limit free speech, dramatically. are there other less restrictive ways of doing it? we're not sure, but we think probably. as you have mentioned some. ok, end of case. mr. montgomery: no our position is there are not enforceable, at least in restrictive ways, the interest estate has about all the ways you listed, the statutes that say you can't approach children and say certain things. and the -- that is in the physical world that they can't be approached.
>> what is the difference? no montgomery: well there is difference. that is why in the virtual world .hey shouldn't be all of them, no matter who the victim was are capable of offending against children. that is why it would apply to everyone. justice breyer: are you able to find out from the site operators, from facebook, who one of the registered offenders is communicating with? there may bey: some instances in which that would happen, but mostly sites have an instant messenger feature or some kind of messenger feature which doesn't show up. in other words, a police officer couldn't go to the website and just look at it and necessarily know who was being communicated with. i thoughtnsburg:
access byidn't allow former sex offenders. mr. montgomery: that's right, there is a prohibition on facebook and other major commercial sites -- >> but that is facebook's choice, not the states. mr. montgomery: that is correct and the state has implemented this law to be a deterrent so that these offenders will not go on facebook, whereas the deterrent effect of facebook having the policy is not the same thing. so the state has made a decision , particularly in the area of information gathering because these offenders can go to these sites and can quietly lurk and find out information and there are links -- the crucial factor that the state leaves narrows the statute is that the site must have links to other users. justice ginsburg: yes, that narrows it, it takes the new
york times.com out of the statute, but it doesn't take the sites that people use today, whether it is twitter or facebook, which become incredibly important parts of our political culture, of our religious culture. if you ask, there are surveys that say how many americans have communicated their faith on in thenetworking sites past week and it turns out that one in five, that is about 50 million americans use this for religious community purposes. whether it is political community, religious community, these sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights, haven't they? mr. montgomery: there are other alternatives still. internet,rt of the but not the entire internet that is being taken away from these and -- offenders. they can still have their own blog, they can read logs, i can
do podcasts, it can go to new york time -- nytimes.com. this does not prohibit sites email or discreetly instant messenger or message boards, there are other alternatives. aboute point to make also he did in this case. he was arrested for accessing facebook. for what he wrote on facebook. he did post something on facebook, but this law prevented him from accessing facebook. >> i thought you had it dropped that distinction in your brief. mr. montgomery: that is correct your honor. the supreme court certainly recognized the was a conduct -- conduct the -- component in this. just like going to a parker playground. he made act that religious statement, it wasn't
specifically because of that that he was arrested and charged and convicted for this offense, but this speech that was implicated. justice ginsburg: how was he apprehended? officer went to his own facebook account and had a list of sex offenders that he was searching for using their names or aliases or family members and he was able to find mr. packingham's father and was , eveno see mr. packingham though he was using an alias, was able to see his picture and nobody was him and he was on the list of sex offenders. that is the way he did this. he apparently found six others or so in this session that were sex offenders on facebook. statute that says convicted swindlers cannot go on facebook or the internet on sites that tell people where
together to discuss money. mr. montgomery: i'm not sure about -- >> i can multiply these examples. -- but prettyf soon you are going to have everyone convicted of different and is not being able to go anywhere or discuss anything. i exaggerate. we can't have convicted swindlers going on facebook to discuss money. mr. montgomery: swindlers are not sex offenders. justice breyer: does that make a difference? mr. montgomery: yes. there have been civil imposed on sex offenders, such as the registry itself as this court knows the registry was constitutional. have found thes restrictions on going to parks are playgrounds and those sorts of players -- play areas are also constitutional. these are criminals who have abused children and others and
committed sex offenses and this court recognizes they have a high rate of recidivism and a very likely to do this again. even as late as 20 years from when they are very -- released, they may recidivate. >> can i ask you a question that has to do with the law's exemptions. some of what is exempted by the law seems like some of the most dangerous stuff. you exempt any website that provides only a chat room or only photo sharing? so why is that? if i would have said where the most activity -- dangerous activity takes place, it is in chat rooms and via photo sharing. mr. montgomery: the legislature in north carolina wanted to have some narrow tailoring to the statute. fact that it eliminates -- some of those things is really a virtue, not a vice. those are pure forms of communication.
justice kagan: it just seems to exempt some of these things this statute is and to prevent. is montgomery: this statute meant to prevent at its core, the harvesting of information anonymously, which is not something you find as much when you are talking about chat rooms or email or those sorts of things. typically, or is not the transparent amount of information or the anonymity that comes with the social networking website in which you can click on a link and go find out information about someone that you don't know. 10 northinsburg: carolina bar those as well? the photo sharing and the chat room? a problem then may be that it is not as narrowly tailored as it should be. >> what did you mean in your brief when you said that north carolina can proceed one step at a time and could take further
steps consistent with the constitution? mr. montgomery: certainly there are other steps that may be taken and perhaps that would be one, but at this point, -- >> what did you mean in your brief when you said north carolina could take other steps? additional steps? mr. montgomery: there are certainly other laws that could be put in place to try to prevent sex offenders from finding out information. justice sotomayor: when you just said to justice ginsburg that would be unconstitutional if they included these things that are instead exempted, you mean there is a constitutional right to use snapchat but not twitter? mr. montgomery: i'm not sure i andrstand -- snapchat twitter seem to be included under the statute. justice kagan: maybe i have it wrong, i am not any expert on
this but isn't snapchat photo sharing? mr. montgomery: i believe that is some of it. justice kagan: so that would fall under the exemption. you can use snapchat but not twitter? mr. montgomery: snapchat, you don't get the level of information you get from something else. twitter, you can find out more information than you can from however many seconds of video or pictures or whatever you get with snapchat. i think it was a decision to go for the sites in which the most anonymous information could be collected by an offender. that offender would then use that to groom the child or otherwise use the information to go meet the child and begin a relationship. the facebook is filled with cases, to allow certain groups of people to speak is actually dangerous. like the communists of years ago. they thought it was years -- a
good idea to have a revolution. all kinds of people have said dangerous things. you take a group of people who have done something wrong, been fully punished and you are saying that they might say something to somebody which would be dangerous and you are right. it might be. on the other hand, your remedy from that is to cut off their speech. i suspect my law clerks in the space of half an hour would find many cases that put it at the level of generality that i just put it back. you can't unless there is a , therend present danger are lots of qualifications. so why don't you tell me when my law clerks are going to look this up and i have a few in mind , what case we should look up to make sure we get the opposite, which is what you are arguing i think? mr. montgomery: his case is much more like person view -- v freeman.
this 100 foot buffer zone is a was agn free voting place missile. and that was suppressing political speech. justice breyer: i think that does not help you at all. number one, it was applied to everyone, it was 100 yards, you could have all the political speech outside the hundred yards or whatever it was. do you have any better case than that? -- i think you lose. mr. montgomery: the reason i mention that case is that the rationale for that was that these kinds of crimes that happened in that zone often go undetected -- >> i agree with you, that is your closest case. that is the one i asked mr. goldberg about because it is the only case i know of where we prophylacticd a
role. we don't exactly know how to separate out the dangerous speech from the not dangerous speak so we are going to have a collective role. that is one out of a zillion first amendment cases that we have decided in our history and as justice kennedy says, there are many reasons to think it is distinguishable from this one. mr. montgomery: the fact that it applied to all makes our case a better case. because it doesn't apply to all, it applies to sex offenders who have committed crimes, who have shown that cannot conform to the law and are likely to be recidivists. the fact that a narrower group does not make it more problematic, but makes it better. mr. goldberg: -- justice roberts: that was not the rationale of v freeman. that would make it worse.
the petitioner here is saying, you are singling me out and saying i can't have the first amendment right everyone else does. that is the opposite that we have. mr. montgomery: it wouldn't be like singling out a political party. these are people who have committed sex offenses. again, they have had certain abilities -- disabilities already. court has certainly said that felons can be prevented from having guns and felons can be prevented from voting, here is a situation in which you have sex offenders who have committed heinous crimes and are likely to recidivate. >> is this ever added to sentences as opposed to filing of the sex registry? mr. montgomery: as part of probation, there can be certainly those sorts of provisions added for the link the parole for instance or probation. there can be a condition.
a lot of times, those are completely banning the internet altogether and one of the things about that is that when somebody is on probation or parole, the usually will consent to having searches done. it is a lot easier for a parole officer to determine whether this person has five computers or a smartphone or what they are period, --g that >> i suppose it is hard to generalize, and you have any idea what the period of parole is for someone who commits a sex offense such as the one issued here? i am not sure. i am thinking it is around three years, but i am not positive on that. yes. justice sotomayor: not if it is a federal crime. mr. montgomery: if it is a federal crime, it would be much longer. justice sotomayor: i am still having some difficulty, because you are building layer upon
layer of speculation, or statistical inference. yes, there is a high statistical inference that recidivism will follow with one sexual crime to another. but then what is the statistical difference i have to draw that people who have abused the neighbors child but never used the internet will now use the internet to abuse a different child, because this rule is not being applied to just people who have been found to have enticed a child on facebook or some form of internet usage. it has been applied indiscriminately to people who have committed a sexual crime of even if theye or more than four
years apart or something else of that nature. what is the conference that every -- inference that every sexual predator is going to use the internet? mr. montgomery: it is often impossible to know whether the sex offenders used the internet are not unless they contacted the victim online, it may be impossible to know whether they use the internet. and certainly as far as recidivism, you don't know how many actual offenses these sex whenders have committed they have been in rehabilitation and said that they can to -- only about 5% of what was reported is what came out when they took a polygraph. there is much more crime committed by these offenders than ever gets reported. the fact is that they could have used the internet for any other crimes. it may be impossible to know if they used the internet for their
crimes. some you would know, that many would not know. -- but many would not know. justice sotomayor: but that might be true of any, or committing almost any crime. mr. montgomery: it could, that again we are talking about social -- >> going on social to see what bank they want to rob. to find out who is employed there. the internet could be used for almost any crime. mr. montgomery: correct. those are even more speculative as to how many people would use that. here we know from studies that about 82% of online sex crimes against children, social networking websites were used to theirnformation about likes and dislikes. 62% of online sex crimes use social networking websites to gain home and school information. we know there is a very high percentage of this percentage -- creditors that are using social
network websites to get information. justice sotomayor: can they go on school websites? mr. montgomery: they can, i am not sure those have individual information about students typically. that of all, information would be of the sort you get with a social networking website which is whether a child likes puppies or whether their parents have recently been through a divorce. that kind of information can't be gathered from a school website. and again, there are ample alternative channels. these offenders can go on noncommercial social networking websites, faking go on social networking websites which only allow adults, they can go to news sites, faking his blogs, wayssts, there are other and in fact, there are plenty of
people who don't use these kinds of websites and find out their information just fine. of a not a matter necessity to have this sort of a website that you can go to. justice sotomayor: how many people under 30 d think don't use these sites to get all of their information? under 35? increasingly this is the way people get everything -- all information. structure their civic community life. mr. montgomery: they do get a lot of information, obviously most anything you can get there you can get anywhere else. the news is typically not coming from facebook. it is coming from some other website. if they are getting news, there are other ways people can can -- to munich eight other than facebook. facebook.han
sites that say as a sex offender, you can't come here, obviously there are always people those people can get -- there are ways those people can get information. they don't have to use that to get information. what about --rg: and there was a brief on the electronic frontier. the new york times is not included. the point is that these people are 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. you don't question that they are being cutoff? mr. montgomery: they are being cutoff and again, it has to be remembered that these are sex offenders who have been affected -- convicted of sex offenses. they should be cut off from
sources of information that they can use to perpetuate their crimes against children, and so they are being cut off from these particular websites but they have other means in which they can gather news, that they can communicate with friends, that they can share pictures, those kinds of things can be done in other places. too think it is important make it clear that the statute does not include new york time -- nytimes.com. >> why? i've got a page here, printed from new york stocks -- the new york times where there is commentary on the side, by people who have created profiles on themselves having a public discussion between them on a news article that was printed in the new york times that appears
to be a new feature of the new york times, that it appears to be a common -- but it appears to be a common feature. mr. montgomery: they often do allow commenting, but the requirement in the statute is they allow someone to go to a profile page and on the profile page, then link to people they don't know. >> where is that in the statute? because i don't read the statutes to impose that as a requirement. mr. montgomery: that is in be three of the statute. four requirements to define a commercial social networking website. allowsright, so b3 personal profiles or webpages that contain information such as links to other personal webpages . so you are reading the "such as" as a requirement, but "such as"
is not a requirement. it is an example but you don't necessarily need this. mr. montgomery: a narrow way to read it is if you had a colon after the word contain. it allows websites that contain: and there are four different things. the nickname of the user, photographs placed on the personal -- >> and you need an applied colon
to links. but it does require a personal profile. and i wouldn't think that is just a nickname. somebody says my nickname is i tonight know what. joe. that that's a profile? would a name be a profile? and can you discuss the personal information? >> it would require all four of these. in subsection b-4 there's a list that starts as such as and includes the word "or" whereas in number three it has such as ut it has the word "and. the legislature knew how to say or or and.
>> such as doesn't mean or or of. you're reading it to mean or or of. >> it modifies the nickname of the user and then you have three other elements to it. >> you need to finish your sentence. >> in this instance, the co-defendant, not the co-defendant but the other person charged in this case not before the court used initials. there could be something besides a name or nickname. >> thank you. mr. goldberg, you have four minutes remaining. >> i'll try to make four oints. our admission it is doesn't matter but overbroad as applied to any one site. but reading the statute doesn't york grammatically if you look in the a and the b, it talks about sites that create web pages or personal profiles and
in a it says to become members or create personal web pages. you can't have a link requirement if there are sites that qualify without creating webpages. second, when they told mr. packing ham what this law refresh my memories and what it means they didn't say anything about links. when you look at the state supreme court opinion they assumed and not just for additional purposes they said to the extent the petitioner is right there are alternatives that they didn't embrace this construction and just recently on this question of snap chat, after the state filed the brief hich is all about links they prosecuted somebody for using snap chat which is a site that doesn't have the links we're talking about. that construction and as my friend is saying maybe somebody might understand what profile means but this is a criminal statute.
if any of us were advising someone on the registry whether they can do it, the supreme court opinion all say you're in great danger of liability here, steer clear and that's what the officer in this case when he was examined on that question that's what he said. the second thing about alternative channels, there's a president and also 500 million tweets a day and 10 billion snap chat videos, it's not just people under 30. >> suppose this case had come to us in 2003 before facebook was created, would there be alternative channels then? >> in 2003, i don't know what the -- it was the predominant chatrooms and that's explicitly xempted so i'm not sure what they would be going after. there are people in la due who
did not have signs but more than three billion people in the world using these sites. >> i'm asking whether the existence of alternative channels asks whether these are channels people like to use or whether if the channels that are affected by the statute are taken away there are alternative channels. i know there are people who think life is not possible without twitter and facebook and these things and that 2003 was the dark ages. i don't know channels at that time had been taken away. if there were alternative channels then why wouldn't there be alternative channels now? >> you have to look at it this is back in 2008 and you have to look at it in practical particularal terms about what ople's communicative life is and what they're able to do and if you look at the case that enforced that requirement and
you look at lynn mark and the city, even in the context of adult zoning the court said there has to be a substantial ount after access and speech in the los angeles airport case this was one place and these are the places where everybody is speaking and interacting and looking for work and petitioning the government every representative, the political debate and the president is speaking to the people through this medium to is an extraordinary argument to say everybody does it, that isn't the test but the test is how much of your core abilities are foreclosed and your ability to speak with the network group over the world is strong as justice kennedy said well beyond the traditional town square and i'm sure there are people who didn't go to the town square but that wouldn't be the basis for upholding a
.estriction there the core point is mr. packing ham this law reaches speech that is fundamentally at the core -- i'm sorry, your honor. i'll say this wolf comes as a wolf and this is core protected speech and nothing about it that implicates the government's purpose and the fact he was convicted for a felony is why this law is unconstitutional. thank you, your honor. > the case is submitted. >> c-span's "washington journal" live every day with news and policy issues that impact you. ming up this morning, karl discusses the recent decision to reverse course on an obama administration plan to phase out private prisons. then john lott, president of
the crime prevention research center will discuss the trump administration's move this week to roll back an obama era backgrounds checks rule and democracy journal contributor chelsea barabus discusses her article on how employers and other entities are using big data and how the relationship between workers and technology is changing. be sure to watch c-span's "washington journal" beginning live at 7:00 a.m. eastern this morning. join the discussion. >> sunday, in depth will feature a live conversation with pulitzer conversation dave barry. during our live discussion from bookstore in karl gables, florida, we'll be taking your calls and emails and facebook questions on his literary career. >> in 1986 i moved to miami and been there ever since and karl and i are going to talk about it but it's a good place if you want to be a