1 00:00:00,120 --> 00:00:02,520 Speaker 1: I'm Greg's store at the Supreme Court in Washington with 2 00:00:02,640 --> 00:00:05,080 Speaker 1: June Grosso and Michael Best in New York. You're listening 3 00:00:05,080 --> 00:00:09,319 Speaker 1: to Bloomberg. Law Lester packing Him's Facebook post was inocuous enough. 4 00:00:09,800 --> 00:00:11,840 Speaker 1: He had just won the dismissal of a traffic ticket 5 00:00:11,880 --> 00:00:15,120 Speaker 1: and he went online to give God the credit. Thanks Jesus, 6 00:00:15,120 --> 00:00:18,000 Speaker 1: he wrote. But because packing Him is a convicted North 7 00:00:18,040 --> 00:00:21,560 Speaker 1: Carolina sex offender, the post got him facing new criminal charges. 8 00:00:22,000 --> 00:00:25,360 Speaker 1: Prosecutors accused him of violating a state law that bars 9 00:00:25,400 --> 00:00:29,120 Speaker 1: registered sex offenders from using social media that sites that 10 00:00:29,200 --> 00:00:32,800 Speaker 1: let children become members. That includes Twitter and Facebook, and 11 00:00:32,840 --> 00:00:36,400 Speaker 1: possibly even the New York Times website. The issue today 12 00:00:36,440 --> 00:00:38,360 Speaker 1: in a U. S. Supreme Court argument was whether that 13 00:00:38,479 --> 00:00:41,919 Speaker 1: law goes so far it violates the First Amendment. Justices 14 00:00:41,960 --> 00:00:44,920 Speaker 1: tend to be technologically averse, but the one hour argument 15 00:00:44,960 --> 00:00:47,720 Speaker 1: got them discussing whether Twitter, Facebook, and other forms of 16 00:00:47,760 --> 00:00:51,800 Speaker 1: social media had become indispensable in today's culture. With us 17 00:00:51,840 --> 00:00:55,360 Speaker 1: to discuss the argument is Melissa Melissa Sherry, a lawyer 18 00:00:55,400 --> 00:00:59,560 Speaker 1: with Lathman, Watkins and Washington. She filed a brief supporting 19 00:01:00,200 --> 00:01:02,520 Speaker 1: the North Carolina law for groups that can beat child 20 00:01:02,520 --> 00:01:05,560 Speaker 1: sex abuse and help victims of sex trafficking. And we're 21 00:01:05,560 --> 00:01:07,520 Speaker 1: gonna have Mark Ruttenberg, who is the president of the 22 00:01:07,560 --> 00:01:11,240 Speaker 1: Electronic Privacy Information Center, He foiled a brief urging the 23 00:01:11,280 --> 00:01:15,520 Speaker 1: court to strike down the law. Melissa, UM, explain to 24 00:01:15,560 --> 00:01:19,440 Speaker 1: me what your understanding of what this this law covers. 25 00:01:21,040 --> 00:01:24,480 Speaker 1: So my understanding is based on North Carolina's position that 26 00:01:24,560 --> 00:01:28,240 Speaker 1: it covers what we think of this true social networking site, So, 27 00:01:28,440 --> 00:01:31,800 Speaker 1: like you said, sites like Facebook and Twitter, and does 28 00:01:31,840 --> 00:01:34,039 Speaker 1: not go so far as the cover sites like The 29 00:01:34,120 --> 00:01:37,760 Speaker 1: New York Times, Um, Betty Crocker dot com and a 30 00:01:37,840 --> 00:01:41,160 Speaker 1: number of other examples that were in the Amigus briefs 31 00:01:41,440 --> 00:01:44,840 Speaker 1: in North Carolina took that position before the court m 32 00:01:44,880 --> 00:01:47,880 Speaker 1: and has defended it on that basis. Mark, what was 33 00:01:47,960 --> 00:01:53,400 Speaker 1: the argument that Packingham made here? Well, he argued essentially 34 00:01:53,400 --> 00:01:57,279 Speaker 1: that the North Carolina statute violated the First Amendment because 35 00:01:57,320 --> 00:02:01,360 Speaker 1: of prohibited both the expression of speech such as the 36 00:02:01,400 --> 00:02:04,560 Speaker 1: comment he had posted on Facebook, as well as his 37 00:02:04,640 --> 00:02:08,960 Speaker 1: ability to receive information online. And of course, so much 38 00:02:09,000 --> 00:02:12,080 Speaker 1: information is made available today on the Internet that to 39 00:02:12,120 --> 00:02:14,800 Speaker 1: prevent somebody from getting access to a wide range of 40 00:02:15,360 --> 00:02:18,400 Speaker 1: Internet websites would prevent them from getting access to a 41 00:02:18,440 --> 00:02:23,440 Speaker 1: lot of protective speech. Melissa, why would it be okay 42 00:02:23,480 --> 00:02:27,560 Speaker 1: to keep somebody off the Internet like this? So the 43 00:02:27,560 --> 00:02:30,800 Speaker 1: North Carolina justification is that what you have here as 44 00:02:30,800 --> 00:02:33,680 Speaker 1: a classies are registered sex offenders. To These are individuals 45 00:02:33,680 --> 00:02:37,120 Speaker 1: who were previously convicted of a sex offense. There are 46 00:02:37,160 --> 00:02:39,600 Speaker 1: a number of restrictions that are placed on sex offenders 47 00:02:39,639 --> 00:02:43,520 Speaker 1: after their release and their sentences have ended, including UM 48 00:02:43,600 --> 00:02:45,919 Speaker 1: having to register for example, on a number of other 49 00:02:46,680 --> 00:02:50,400 Speaker 1: impairments that come with registration. What North Carolina was trying 50 00:02:50,440 --> 00:02:53,880 Speaker 1: to do is find a way to prevent these offenders 51 00:02:53,960 --> 00:02:57,520 Speaker 1: from having access to children. And while UM, you know, 52 00:02:57,560 --> 00:02:59,919 Speaker 1: back in the day, you would think about places like 53 00:03:00,120 --> 00:03:04,480 Speaker 1: parks and playgrounds and schools where UM kids would gather, 54 00:03:04,639 --> 00:03:07,560 Speaker 1: and there are a number of laws preventing previously convicted 55 00:03:07,600 --> 00:03:10,480 Speaker 1: sex offenders from going to those physical locations and having 56 00:03:10,480 --> 00:03:13,440 Speaker 1: access to children. UH. In today's modern world, these are 57 00:03:13,440 --> 00:03:18,560 Speaker 1: basically virtual places where children gather and where statistics have 58 00:03:18,639 --> 00:03:21,240 Speaker 1: shown that offenders do have access to children are able 59 00:03:21,280 --> 00:03:24,760 Speaker 1: to both get information and contact children through these sites. 60 00:03:25,680 --> 00:03:29,280 Speaker 1: Market It's really hard to argue with that objective. Why 61 00:03:29,480 --> 00:03:32,800 Speaker 1: isn't this just a matter of taking what states have 62 00:03:32,840 --> 00:03:36,720 Speaker 1: always done in restricting sex defenders from physical places and 63 00:03:36,840 --> 00:03:40,960 Speaker 1: applying it to a virtual world. I think it's important 64 00:03:41,000 --> 00:03:43,160 Speaker 1: to understand that is a big leap, of course. I mean, 65 00:03:43,200 --> 00:03:48,160 Speaker 1: you could easily justify restrictions on access to physical spaces 66 00:03:48,480 --> 00:03:51,600 Speaker 1: such as a school or a park that doesn't implicate 67 00:03:51,640 --> 00:03:54,480 Speaker 1: the First Amendment. But when you pass the state law 68 00:03:54,520 --> 00:03:58,120 Speaker 1: that restricts a person's ability to get access to information 69 00:03:58,600 --> 00:04:02,760 Speaker 1: where there's no direct risk of contact or harm, then 70 00:04:02,800 --> 00:04:05,840 Speaker 1: you're squarely in the First Amendment. Realm part of the 71 00:04:05,880 --> 00:04:07,800 Speaker 1: concern that I heard this morning, I was at the 72 00:04:08,000 --> 00:04:11,440 Speaker 1: court for the arguments, and several of the justices we're 73 00:04:11,480 --> 00:04:15,480 Speaker 1: saying that recognizing North Carolina is concerned, the statute itself 74 00:04:15,600 --> 00:04:20,080 Speaker 1: nonetheless seems overly broad. In other words, if you're concerned 75 00:04:20,120 --> 00:04:24,400 Speaker 1: about the possibility of communications between a convicted sex offender 76 00:04:25,080 --> 00:04:28,240 Speaker 1: and a minor, then maybe you need a statute that 77 00:04:28,480 --> 00:04:32,919 Speaker 1: is focused specifically on those types of communications and not 78 00:04:33,160 --> 00:04:39,440 Speaker 1: this much broader reached to all commercial social networking sites. 79 00:04:39,560 --> 00:04:41,880 Speaker 1: They even said that when you think about what constitutes 80 00:04:41,880 --> 00:04:45,719 Speaker 1: a commercial social networking side, it's not always clear where 81 00:04:45,720 --> 00:04:47,680 Speaker 1: the where the line is to be drawn I mean, 82 00:04:48,080 --> 00:04:51,520 Speaker 1: you know, Facebook maybe an obvious example. I don't think 83 00:04:51,560 --> 00:04:54,520 Speaker 1: it's obvious that the New York Times, where people are 84 00:04:54,520 --> 00:04:58,040 Speaker 1: able to exchange comments and provide their identity and even 85 00:04:58,520 --> 00:05:02,679 Speaker 1: profile images, could not be considered a social networking site. 86 00:05:02,680 --> 00:05:06,320 Speaker 1: And certainly Twitter um interestingly, which came up several times 87 00:05:06,400 --> 00:05:09,039 Speaker 1: during the argument this morning, is viewed very much as 88 00:05:09,080 --> 00:05:12,160 Speaker 1: a social networking site, and still it's become one of 89 00:05:12,200 --> 00:05:15,160 Speaker 1: the primary ways of receiving information in the United States. 90 00:05:16,600 --> 00:05:19,800 Speaker 1: We're talking with Mark Rottenberg of the Electronic Privacy Privacy 91 00:05:19,839 --> 00:05:23,840 Speaker 1: Information Center and Melissa Sherry with late Latham and Watkins 92 00:05:23,920 --> 00:05:26,400 Speaker 1: here in Washington, d C. About the Supreme Court argument 93 00:05:26,440 --> 00:05:29,919 Speaker 1: today on a North Carolina law that bars convicted sex 94 00:05:29,960 --> 00:05:34,880 Speaker 1: offenders from uh taking part from using social media. Are 95 00:05:34,960 --> 00:05:37,919 Speaker 1: many forms of social media Supreme Court herd arguments today. 96 00:05:37,920 --> 00:05:41,120 Speaker 1: We'll talk more about that in a moment. You're listening 97 00:05:41,120 --> 00:05:44,400 Speaker 1: to Bloomberg Law Michael beston June Grosser or in New York. 98 00:05:44,520 --> 00:05:47,160 Speaker 1: I'm Greg Store here at the Supreme Court. We're talking 99 00:05:47,200 --> 00:05:50,000 Speaker 1: about the Supreme Court arguments today on a North Carolina 100 00:05:50,120 --> 00:05:53,760 Speaker 1: law that bars convicted sex offenders from using many forms 101 00:05:53,760 --> 00:05:56,880 Speaker 1: of social media. A number of the justices were skeptical 102 00:05:57,040 --> 00:06:00,960 Speaker 1: of the law and the arguments today just to Elena 103 00:06:01,040 --> 00:06:06,120 Speaker 1: Kagan said that Twitter and Facebook have become incredibly important 104 00:06:06,279 --> 00:06:10,120 Speaker 1: parts of our political and religious culture. Anthony Kennedy said 105 00:06:10,160 --> 00:06:13,960 Speaker 1: that the communications that happened there are more significant than 106 00:06:14,000 --> 00:06:16,599 Speaker 1: what used to go on in the paradiomatic public square. 107 00:06:17,080 --> 00:06:19,760 Speaker 1: Our guests are Melissa Arvis Sherry, who is a lawyer 108 00:06:19,800 --> 00:06:22,960 Speaker 1: at Lathman Watkins. She filed a brief helping to defend 109 00:06:22,960 --> 00:06:26,440 Speaker 1: the law, and Mark Rottenberg of the Electronic Privacy Information Center. 110 00:06:26,720 --> 00:06:30,920 Speaker 1: He filed the brief opposing the law. Melissa. A minute ago, 111 00:06:31,000 --> 00:06:34,719 Speaker 1: Mark was talking about his view about why this law 112 00:06:34,839 --> 00:06:38,600 Speaker 1: sweeps up too much, much more speech than necessary. Isn't 113 00:06:38,600 --> 00:06:42,400 Speaker 1: there aren't there ways the state could uh do something 114 00:06:42,400 --> 00:06:46,000 Speaker 1: more narrowly to actually get at uh people who are 115 00:06:46,080 --> 00:06:48,920 Speaker 1: getting on social media to try to get in touch 116 00:06:48,960 --> 00:06:51,719 Speaker 1: with miners, rather than you know, barring are all social 117 00:06:51,760 --> 00:06:56,400 Speaker 1: media access. So there's certainly are laws that are more 118 00:06:56,520 --> 00:06:59,040 Speaker 1: narrow I think the harder question is whether there's laws 119 00:06:59,040 --> 00:07:01,600 Speaker 1: that can be equally or close to as effective as 120 00:07:01,680 --> 00:07:04,760 Speaker 1: this law. And that's something that North Carolina was struggling 121 00:07:04,760 --> 00:07:07,640 Speaker 1: with a lot of the more narrow examples actually do exist, 122 00:07:07,680 --> 00:07:10,920 Speaker 1: either in North Carolina or in other states, and unfortunately 123 00:07:10,960 --> 00:07:14,760 Speaker 1: they haven't been sufficient UH to stop the tide of 124 00:07:14,760 --> 00:07:17,560 Speaker 1: of sex offenders, and so in North Carolina and other 125 00:07:17,560 --> 00:07:21,119 Speaker 1: states are looking for additional options UH in other ways 126 00:07:21,200 --> 00:07:25,080 Speaker 1: to get at these offenders before they re offend, and 127 00:07:25,160 --> 00:07:29,600 Speaker 1: so UM in focusing on access, what this addresses that 128 00:07:29,640 --> 00:07:33,400 Speaker 1: a lot of the other alternatives do not is stopping 129 00:07:33,600 --> 00:07:37,480 Speaker 1: passive information gathering. So individuals that are able to access 130 00:07:37,520 --> 00:07:41,920 Speaker 1: profiles and personal information of kids online in a very anonymous, 131 00:07:41,960 --> 00:07:44,800 Speaker 1: passive way, find out what their likes are, what their 132 00:07:44,840 --> 00:07:47,400 Speaker 1: dislikes are, figure out where they're going. You know, people 133 00:07:47,400 --> 00:07:50,760 Speaker 1: put cell phone numbers on there and other personal information, 134 00:07:50,840 --> 00:07:54,520 Speaker 1: and so by prohibiting access, it's meant to stop UM 135 00:07:54,920 --> 00:07:59,640 Speaker 1: that information gathering before another child disabused. Mark were you 136 00:07:59,680 --> 00:08:03,600 Speaker 1: s rise that it seemed like at least five justices 137 00:08:04,160 --> 00:08:08,400 Speaker 1: suggested during the argument that they would rule for North 138 00:08:08,440 --> 00:08:13,040 Speaker 1: Carolina resident Packingham that they were so familiar with social 139 00:08:13,080 --> 00:08:16,440 Speaker 1: media because often they're not when it comes to cases 140 00:08:16,480 --> 00:08:22,320 Speaker 1: like this. Well, I wasn't surprised that the argument seemed 141 00:08:22,360 --> 00:08:27,240 Speaker 1: to take a pro First Amendment direction, as the justices 142 00:08:27,320 --> 00:08:32,040 Speaker 1: were asking questions and making points. Um I was surprised, 143 00:08:32,040 --> 00:08:36,680 Speaker 1: as you suggest, about the level of familiarity that the 144 00:08:36,760 --> 00:08:41,480 Speaker 1: justices had with Internet services. It was interesting, for example, 145 00:08:41,600 --> 00:08:45,920 Speaker 1: Justice Keig and Uh questioning the fact that the state 146 00:08:46,040 --> 00:08:50,640 Speaker 1: had exempted so called single use services such as photo 147 00:08:50,679 --> 00:08:55,280 Speaker 1: sharing services or or texting services, drew attention to the 148 00:08:55,320 --> 00:08:59,840 Speaker 1: point that Snapchat wasn't covered under the North Carolina law, 149 00:09:00,440 --> 00:09:04,520 Speaker 1: whereas Twitter was, And for people who are familiar with 150 00:09:04,559 --> 00:09:08,320 Speaker 1: both Snapchat and Twitter, you might understandably be a bit 151 00:09:08,360 --> 00:09:13,520 Speaker 1: more concerned about the use of Snapchat by sex offenders 152 00:09:13,559 --> 00:09:18,040 Speaker 1: than you would about Twitter. But to even ask that question, 153 00:09:18,080 --> 00:09:21,680 Speaker 1: and to make that distinction, considering the exemption the statute, 154 00:09:21,679 --> 00:09:23,199 Speaker 1: you'd have to know a fair amount of about the 155 00:09:23,240 --> 00:09:27,800 Speaker 1: two services. So I thought that was really a high 156 00:09:27,840 --> 00:09:31,400 Speaker 1: moment in terms of the court's ability to look at 157 00:09:31,400 --> 00:09:34,920 Speaker 1: the internet based services and try to draw an analysis 158 00:09:34,920 --> 00:09:38,040 Speaker 1: that was relevant to the case before them. Melissa, given 159 00:09:38,080 --> 00:09:42,680 Speaker 1: both the courts apparent familiarity with how the the Internet works, 160 00:09:42,760 --> 00:09:46,000 Speaker 1: which could be surprising to some, and the fact that 161 00:09:46,280 --> 00:09:48,480 Speaker 1: there does seem to be, at least based on argument, 162 00:09:48,520 --> 00:09:50,760 Speaker 1: the possibility that the majority is going to strike down 163 00:09:50,800 --> 00:09:53,959 Speaker 1: this rule, this law is overly brought. Could an alternative 164 00:09:54,000 --> 00:09:56,320 Speaker 1: approach to something like this bid say that instead of 165 00:09:56,360 --> 00:10:00,280 Speaker 1: being a blanket prohibition against sex offenders, a state could 166 00:10:00,320 --> 00:10:04,920 Speaker 1: authorize judges to make an individualized determination that a particular 167 00:10:05,000 --> 00:10:07,280 Speaker 1: sex offender, based on the facts of his case, needs 168 00:10:07,320 --> 00:10:09,840 Speaker 1: to be kept off the internet, says a condition of 169 00:10:10,000 --> 00:10:14,320 Speaker 1: probation or parole. I think it could. I mean, as 170 00:10:14,360 --> 00:10:16,440 Speaker 1: far as the condition of probation or parole like. One 171 00:10:16,520 --> 00:10:19,360 Speaker 1: of the questions that was asked during argument was exactly 172 00:10:19,400 --> 00:10:23,120 Speaker 1: that whether that would be constitutional, and I think the 173 00:10:23,200 --> 00:10:27,040 Speaker 1: sentiment was that that it would be. Um, of course, 174 00:10:27,080 --> 00:10:29,679 Speaker 1: you know, probation or or parole if time limited in 175 00:10:29,679 --> 00:10:33,319 Speaker 1: that respect, and to the extent sex offenders have the 176 00:10:33,400 --> 00:10:35,600 Speaker 1: propensity or at least some of them due to to 177 00:10:35,720 --> 00:10:39,960 Speaker 1: reoffend years into the future. It's a limited solution. Um. 178 00:10:40,000 --> 00:10:43,400 Speaker 1: As with the other alternatives. Another one that was suggested 179 00:10:43,760 --> 00:10:46,360 Speaker 1: by one of the justices that argument was whether there 180 00:10:46,440 --> 00:10:49,240 Speaker 1: could be an app of some sort that would allow 181 00:10:49,320 --> 00:10:54,719 Speaker 1: the state to essentially monitor Internet access for registered sex offenders. 182 00:10:54,760 --> 00:10:56,559 Speaker 1: And you know the response of that was that it 183 00:10:56,640 --> 00:10:59,240 Speaker 1: might be better for First Amendment purposes, but perhaps there 184 00:10:59,240 --> 00:11:03,760 Speaker 1: are some Fourth Amendment problems with that proposal, but there 185 00:11:03,800 --> 00:11:05,280 Speaker 1: you know, at the argument, there were a number of 186 00:11:05,280 --> 00:11:08,480 Speaker 1: other alternatives that have been suggested. And if the Court 187 00:11:09,000 --> 00:11:12,520 Speaker 1: were to decide that what North Carolina did here was 188 00:11:12,640 --> 00:11:15,840 Speaker 1: too broader, wasn't narrowly tailored enough, I think the next 189 00:11:16,040 --> 00:11:19,320 Speaker 1: important question from how the decision is written is what 190 00:11:19,320 --> 00:11:22,640 Speaker 1: what can states do to get at this problem. I 191 00:11:22,679 --> 00:11:25,520 Speaker 1: want to thank our guests Mark Rottenberg of the Electronic 192 00:11:25,559 --> 00:11:30,000 Speaker 1: Privacy Information Center and Melissa Arbys Sherry of Lathman Watkins 193 00:11:30,080 --> 00:11:33,840 Speaker 1: talking about the Supreme Court arguments today on the North 194 00:11:33,880 --> 00:11:38,600 Speaker 1: Carolina law that would borrow many sex offender all convicted 195 00:11:38,640 --> 00:11:43,800 Speaker 1: sex offenders of accessing many social media sites. Uh. This 196 00:11:43,800 --> 00:11:45,840 Speaker 1: this looks to be, June and Michael, one of the 197 00:11:45,880 --> 00:11:49,600 Speaker 1: biggest Supreme Court cases of the year. It sure does. Uh, 198 00:11:49,679 --> 00:11:52,800 Speaker 1: you know, it's the justices have been very solicitous of 199 00:11:52,880 --> 00:11:56,920 Speaker 1: First Amendment views here, even in facts where they petitioners 200 00:11:56,920 --> 00:12:00,199 Speaker 1: are not particularly sympathetic, so not to surprise saying that 201 00:12:00,240 --> 00:12:01,400 Speaker 1: they seem to be leaning that way.