WEBVTT - Court Debate Sex Offender Internet Rules (Audio) (Correct) 0:00:00.120 --> 0:00:02.520 I'm Greg's store at the Supreme Court in Washington with 0:00:02.640 --> 0:00:05.080 June Grosso and Michael Best in New York. You're listening 0:00:05.080 --> 0:00:09.319 to Bloomberg. Law Lester packing Him's Facebook post was inocuous enough. 0:00:09.800 --> 0:00:11.840 He had just won the dismissal of a traffic ticket 0:00:11.880 --> 0:00:15.120 and he went online to give God the credit. Thanks Jesus, 0:00:15.120 --> 0:00:18.000 he wrote. But because packing Him is a convicted North 0:00:18.040 --> 0:00:21.560 Carolina sex offender, the post got him facing new criminal charges. 0:00:22.000 --> 0:00:25.360 Prosecutors accused him of violating a state law that bars 0:00:25.400 --> 0:00:29.120 registered sex offenders from using social media that sites that 0:00:29.200 --> 0:00:32.800 let children become members. That includes Twitter and Facebook, and 0:00:32.840 --> 0:00:36.400 possibly even the New York Times website. The issue today 0:00:36.440 --> 0:00:38.360 in a U. S. Supreme Court argument was whether that 0:00:38.479 --> 0:00:41.919 law goes so far it violates the First Amendment. Justices 0:00:41.960 --> 0:00:44.920 tend to be technologically averse, but the one hour argument 0:00:44.960 --> 0:00:47.720 got them discussing whether Twitter, Facebook, and other forms of 0:00:47.760 --> 0:00:51.800 social media had become indispensable in today's culture. With us 0:00:51.840 --> 0:00:55.360 to discuss the argument is Melissa Melissa Sherry, a lawyer 0:00:55.400 --> 0:00:59.560 with Lathman, Watkins and Washington. She filed a brief supporting 0:01:00.200 --> 0:01:02.520 the North Carolina law for groups that can beat child 0:01:02.520 --> 0:01:05.560 sex abuse and help victims of sex trafficking. And we're 0:01:05.560 --> 0:01:07.520 gonna have Mark Ruttenberg, who is the president of the 0:01:07.560 --> 0:01:11.240 Electronic Privacy Information Center, He foiled a brief urging the 0:01:11.280 --> 0:01:15.520 court to strike down the law. Melissa, UM, explain to 0:01:15.560 --> 0:01:19.440 me what your understanding of what this this law covers. 0:01:21.040 --> 0:01:24.480 So my understanding is based on North Carolina's position that 0:01:24.560 --> 0:01:28.240 it covers what we think of this true social networking site, So, 0:01:28.440 --> 0:01:31.800 like you said, sites like Facebook and Twitter, and does 0:01:31.840 --> 0:01:34.039 not go so far as the cover sites like The 0:01:34.120 --> 0:01:37.760 New York Times, Um, Betty Crocker dot com and a 0:01:37.840 --> 0:01:41.160 number of other examples that were in the Amigus briefs 0:01:41.440 --> 0:01:44.840 in North Carolina took that position before the court m 0:01:44.880 --> 0:01:47.880 and has defended it on that basis. Mark, what was 0:01:47.960 --> 0:01:53.400 the argument that Packingham made here? Well, he argued essentially 0:01:53.400 --> 0:01:57.279 that the North Carolina statute violated the First Amendment because 0:01:57.320 --> 0:02:01.360 of prohibited both the expression of speech such as the 0:02:01.400 --> 0:02:04.560 comment he had posted on Facebook, as well as his 0:02:04.640 --> 0:02:08.960 ability to receive information online. And of course, so much 0:02:09.000 --> 0:02:12.080 information is made available today on the Internet that to 0:02:12.120 --> 0:02:14.800 prevent somebody from getting access to a wide range of 0:02:15.360 --> 0:02:18.400 Internet websites would prevent them from getting access to a 0:02:18.440 --> 0:02:23.440 lot of protective speech. Melissa, why would it be okay 0:02:23.480 --> 0:02:27.560 to keep somebody off the Internet like this? So the 0:02:27.560 --> 0:02:30.800 North Carolina justification is that what you have here as 0:02:30.800 --> 0:02:33.680 a classies are registered sex offenders. To These are individuals 0:02:33.680 --> 0:02:37.120 who were previously convicted of a sex offense. There are 0:02:37.160 --> 0:02:39.600 a number of restrictions that are placed on sex offenders 0:02:39.639 --> 0:02:43.520 after their release and their sentences have ended, including UM 0:02:43.600 --> 0:02:45.919 having to register for example, on a number of other 0:02:46.680 --> 0:02:50.400 impairments that come with registration. What North Carolina was trying 0:02:50.440 --> 0:02:53.880 to do is find a way to prevent these offenders 0:02:53.960 --> 0:02:57.520 from having access to children. And while UM, you know, 0:02:57.560 --> 0:02:59.919 back in the day, you would think about places like 0:03:00.120 --> 0:03:04.480 parks and playgrounds and schools where UM kids would gather, 0:03:04.639 --> 0:03:07.560 and there are a number of laws preventing previously convicted 0:03:07.600 --> 0:03:10.480 sex offenders from going to those physical locations and having 0:03:10.480 --> 0:03:13.440 access to children. UH. In today's modern world, these are 0:03:13.440 --> 0:03:18.560 basically virtual places where children gather and where statistics have 0:03:18.639 --> 0:03:21.240 shown that offenders do have access to children are able 0:03:21.280 --> 0:03:24.760 to both get information and contact children through these sites. 0:03:25.680 --> 0:03:29.280 Market It's really hard to argue with that objective. Why 0:03:29.480 --> 0:03:32.800 isn't this just a matter of taking what states have 0:03:32.840 --> 0:03:36.720 always done in restricting sex defenders from physical places and 0:03:36.840 --> 0:03:40.960 applying it to a virtual world. I think it's important 0:03:41.000 --> 0:03:43.160 to understand that is a big leap, of course. I mean, 0:03:43.200 --> 0:03:48.160 you could easily justify restrictions on access to physical spaces 0:03:48.480 --> 0:03:51.600 such as a school or a park that doesn't implicate 0:03:51.640 --> 0:03:54.480 the First Amendment. But when you pass the state law 0:03:54.520 --> 0:03:58.120 that restricts a person's ability to get access to information 0:03:58.600 --> 0:04:02.760 where there's no direct risk of contact or harm, then 0:04:02.800 --> 0:04:05.840 you're squarely in the First Amendment. Realm part of the 0:04:05.880 --> 0:04:07.800 concern that I heard this morning, I was at the 0:04:08.000 --> 0:04:11.440 court for the arguments, and several of the justices we're 0:04:11.480 --> 0:04:15.480 saying that recognizing North Carolina is concerned, the statute itself 0:04:15.600 --> 0:04:20.080 nonetheless seems overly broad. In other words, if you're concerned 0:04:20.120 --> 0:04:24.400 about the possibility of communications between a convicted sex offender 0:04:25.080 --> 0:04:28.240 and a minor, then maybe you need a statute that 0:04:28.480 --> 0:04:32.919 is focused specifically on those types of communications and not 0:04:33.160 --> 0:04:39.440 this much broader reached to all commercial social networking sites. 0:04:39.560 --> 0:04:41.880 They even said that when you think about what constitutes 0:04:41.880 --> 0:04:45.719 a commercial social networking side, it's not always clear where 0:04:45.720 --> 0:04:47.680 the where the line is to be drawn I mean, 0:04:48.080 --> 0:04:51.520 you know, Facebook maybe an obvious example. I don't think 0:04:51.560 --> 0:04:54.520 it's obvious that the New York Times, where people are 0:04:54.520 --> 0:04:58.040 able to exchange comments and provide their identity and even 0:04:58.520 --> 0:05:02.679 profile images, could not be considered a social networking site. 0:05:02.680 --> 0:05:06.320 And certainly Twitter um interestingly, which came up several times 0:05:06.400 --> 0:05:09.039 during the argument this morning, is viewed very much as 0:05:09.080 --> 0:05:12.160 a social networking site, and still it's become one of 0:05:12.200 --> 0:05:15.160 the primary ways of receiving information in the United States. 0:05:16.600 --> 0:05:19.800 We're talking with Mark Rottenberg of the Electronic Privacy Privacy 0:05:19.839 --> 0:05:23.840 Information Center and Melissa Sherry with late Latham and Watkins 0:05:23.920 --> 0:05:26.400 here in Washington, d C. About the Supreme Court argument 0:05:26.440 --> 0:05:29.919 today on a North Carolina law that bars convicted sex 0:05:29.960 --> 0:05:34.880 offenders from uh taking part from using social media. Are 0:05:34.960 --> 0:05:37.919 many forms of social media Supreme Court herd arguments today. 0:05:37.920 --> 0:05:41.120 We'll talk more about that in a moment. You're listening 0:05:41.120 --> 0:05:44.400 to Bloomberg Law Michael beston June Grosser or in New York. 0:05:44.520 --> 0:05:47.160 I'm Greg Store here at the Supreme Court. We're talking 0:05:47.200 --> 0:05:50.000 about the Supreme Court arguments today on a North Carolina 0:05:50.120 --> 0:05:53.760 law that bars convicted sex offenders from using many forms 0:05:53.760 --> 0:05:56.880 of social media. A number of the justices were skeptical 0:05:57.040 --> 0:06:00.960 of the law and the arguments today just to Elena 0:06:01.040 --> 0:06:06.120 Kagan said that Twitter and Facebook have become incredibly important 0:06:06.279 --> 0:06:10.120 parts of our political and religious culture. Anthony Kennedy said 0:06:10.160 --> 0:06:13.960 that the communications that happened there are more significant than 0:06:14.000 --> 0:06:16.599 what used to go on in the paradiomatic public square. 0:06:17.080 --> 0:06:19.760 Our guests are Melissa Arvis Sherry, who is a lawyer 0:06:19.800 --> 0:06:22.960 at Lathman Watkins. She filed a brief helping to defend 0:06:22.960 --> 0:06:26.440 the law, and Mark Rottenberg of the Electronic Privacy Information Center. 0:06:26.720 --> 0:06:30.920 He filed the brief opposing the law. Melissa. A minute ago, 0:06:31.000 --> 0:06:34.719 Mark was talking about his view about why this law 0:06:34.839 --> 0:06:38.600 sweeps up too much, much more speech than necessary. Isn't 0:06:38.600 --> 0:06:42.400 there aren't there ways the state could uh do something 0:06:42.400 --> 0:06:46.000 more narrowly to actually get at uh people who are 0:06:46.080 --> 0:06:48.920 getting on social media to try to get in touch 0:06:48.960 --> 0:06:51.719 with miners, rather than you know, barring are all social 0:06:51.760 --> 0:06:56.400 media access. So there's certainly are laws that are more 0:06:56.520 --> 0:06:59.040 narrow I think the harder question is whether there's laws 0:06:59.040 --> 0:07:01.600 that can be equally or close to as effective as 0:07:01.680 --> 0:07:04.760 this law. And that's something that North Carolina was struggling 0:07:04.760 --> 0:07:07.640 with a lot of the more narrow examples actually do exist, 0:07:07.680 --> 0:07:10.920 either in North Carolina or in other states, and unfortunately 0:07:10.960 --> 0:07:14.760 they haven't been sufficient UH to stop the tide of 0:07:14.760 --> 0:07:17.560 of sex offenders, and so in North Carolina and other 0:07:17.560 --> 0:07:21.119 states are looking for additional options UH in other ways 0:07:21.200 --> 0:07:25.080 to get at these offenders before they re offend, and 0:07:25.160 --> 0:07:29.600 so UM in focusing on access, what this addresses that 0:07:29.640 --> 0:07:33.400 a lot of the other alternatives do not is stopping 0:07:33.600 --> 0:07:37.480 passive information gathering. So individuals that are able to access 0:07:37.520 --> 0:07:41.920 profiles and personal information of kids online in a very anonymous, 0:07:41.960 --> 0:07:44.800 passive way, find out what their likes are, what their 0:07:44.840 --> 0:07:47.400 dislikes are, figure out where they're going. You know, people 0:07:47.400 --> 0:07:50.760 put cell phone numbers on there and other personal information, 0:07:50.840 --> 0:07:54.520 and so by prohibiting access, it's meant to stop UM 0:07:54.920 --> 0:07:59.640 that information gathering before another child disabused. Mark were you 0:07:59.680 --> 0:08:03.600 s rise that it seemed like at least five justices 0:08:04.160 --> 0:08:08.400 suggested during the argument that they would rule for North 0:08:08.440 --> 0:08:13.040 Carolina resident Packingham that they were so familiar with social 0:08:13.080 --> 0:08:16.440 media because often they're not when it comes to cases 0:08:16.480 --> 0:08:22.320 like this. Well, I wasn't surprised that the argument seemed 0:08:22.360 --> 0:08:27.240 to take a pro First Amendment direction, as the justices 0:08:27.320 --> 0:08:32.040 were asking questions and making points. Um I was surprised, 0:08:32.040 --> 0:08:36.680 as you suggest, about the level of familiarity that the 0:08:36.760 --> 0:08:41.480 justices had with Internet services. It was interesting, for example, 0:08:41.600 --> 0:08:45.920 Justice Keig and Uh questioning the fact that the state 0:08:46.040 --> 0:08:50.640 had exempted so called single use services such as photo 0:08:50.679 --> 0:08:55.280 sharing services or or texting services, drew attention to the 0:08:55.320 --> 0:08:59.840 point that Snapchat wasn't covered under the North Carolina law, 0:09:00.440 --> 0:09:04.520 whereas Twitter was, And for people who are familiar with 0:09:04.559 --> 0:09:08.320 both Snapchat and Twitter, you might understandably be a bit 0:09:08.360 --> 0:09:13.520 more concerned about the use of Snapchat by sex offenders 0:09:13.559 --> 0:09:18.040 than you would about Twitter. But to even ask that question, 0:09:18.080 --> 0:09:21.680 and to make that distinction, considering the exemption the statute, 0:09:21.679 --> 0:09:23.199 you'd have to know a fair amount of about the 0:09:23.240 --> 0:09:27.800 two services. So I thought that was really a high 0:09:27.840 --> 0:09:31.400 moment in terms of the court's ability to look at 0:09:31.400 --> 0:09:34.920 the internet based services and try to draw an analysis 0:09:34.920 --> 0:09:38.040 that was relevant to the case before them. Melissa, given 0:09:38.080 --> 0:09:42.680 both the courts apparent familiarity with how the the Internet works, 0:09:42.760 --> 0:09:46.000 which could be surprising to some, and the fact that 0:09:46.280 --> 0:09:48.480 there does seem to be, at least based on argument, 0:09:48.520 --> 0:09:50.760 the possibility that the majority is going to strike down 0:09:50.800 --> 0:09:53.959 this rule, this law is overly brought. Could an alternative 0:09:54.000 --> 0:09:56.320 approach to something like this bid say that instead of 0:09:56.360 --> 0:10:00.280 being a blanket prohibition against sex offenders, a state could 0:10:00.320 --> 0:10:04.920 authorize judges to make an individualized determination that a particular 0:10:05.000 --> 0:10:07.280 sex offender, based on the facts of his case, needs 0:10:07.320 --> 0:10:09.840 to be kept off the internet, says a condition of 0:10:10.000 --> 0:10:14.320 probation or parole. I think it could. I mean, as 0:10:14.360 --> 0:10:16.440 far as the condition of probation or parole like. One 0:10:16.520 --> 0:10:19.360 of the questions that was asked during argument was exactly 0:10:19.400 --> 0:10:23.120 that whether that would be constitutional, and I think the 0:10:23.200 --> 0:10:27.040 sentiment was that that it would be. Um, of course, 0:10:27.080 --> 0:10:29.679 you know, probation or or parole if time limited in 0:10:29.679 --> 0:10:33.319 that respect, and to the extent sex offenders have the 0:10:33.400 --> 0:10:35.600 propensity or at least some of them due to to 0:10:35.720 --> 0:10:39.960 reoffend years into the future. It's a limited solution. Um. 0:10:40.000 --> 0:10:43.400 As with the other alternatives. Another one that was suggested 0:10:43.760 --> 0:10:46.360 by one of the justices that argument was whether there 0:10:46.440 --> 0:10:49.240 could be an app of some sort that would allow 0:10:49.320 --> 0:10:54.719 the state to essentially monitor Internet access for registered sex offenders. 0:10:54.760 --> 0:10:56.559 And you know the response of that was that it 0:10:56.640 --> 0:10:59.240 might be better for First Amendment purposes, but perhaps there 0:10:59.240 --> 0:11:03.760 are some Fourth Amendment problems with that proposal, but there 0:11:03.800 --> 0:11:05.280 you know, at the argument, there were a number of 0:11:05.280 --> 0:11:08.480 other alternatives that have been suggested. And if the Court 0:11:09.000 --> 0:11:12.520 were to decide that what North Carolina did here was 0:11:12.640 --> 0:11:15.840 too broader, wasn't narrowly tailored enough, I think the next 0:11:16.040 --> 0:11:19.320 important question from how the decision is written is what 0:11:19.320 --> 0:11:22.640 what can states do to get at this problem. I 0:11:22.679 --> 0:11:25.520 want to thank our guests Mark Rottenberg of the Electronic 0:11:25.559 --> 0:11:30.000 Privacy Information Center and Melissa Arbys Sherry of Lathman Watkins 0:11:30.080 --> 0:11:33.840 talking about the Supreme Court arguments today on the North 0:11:33.880 --> 0:11:38.600 Carolina law that would borrow many sex offender all convicted 0:11:38.640 --> 0:11:43.800 sex offenders of accessing many social media sites. Uh. This 0:11:43.800 --> 0:11:45.840 this looks to be, June and Michael, one of the 0:11:45.880 --> 0:11:49.600 biggest Supreme Court cases of the year. It sure does. Uh, 0:11:49.679 --> 0:11:52.800 you know, it's the justices have been very solicitous of 0:11:52.880 --> 0:11:56.920 First Amendment views here, even in facts where they petitioners 0:11:56.920 --> 0:12:00.199 are not particularly sympathetic, so not to surprise saying that 0:12:00.240 --> 0:12:01.400 they seem to be leaning that way.