Speaker 1: I'm Greg's store at the Supreme Court in Washington with
Speaker 1: June Grosso and Michael Best in New York. You're listening
Speaker 1: to Bloomberg. Law Lester packing Him's Facebook post was inocuous enough.
Speaker 1: He had just won the dismissal of a traffic ticket
Speaker 1: and he went online to give God the credit. Thanks Jesus,
Speaker 1: he wrote. But because packing Him is a convicted North
Speaker 1: Carolina sex offender, the post got him facing new criminal charges.
Speaker 1: Prosecutors accused him of violating a state law that bars
Speaker 1: registered sex offenders from using social media that sites that
Speaker 1: let children become members. That includes Twitter and Facebook, and
Speaker 1: possibly even the New York Times website. The issue today
Speaker 1: in a U. S. Supreme Court argument was whether that
Speaker 1: law goes so far it violates the First Amendment. Justices
Speaker 1: tend to be technologically averse, but the one hour argument
Speaker 1: got them discussing whether Twitter, Facebook, and other forms of
Speaker 1: social media had become indispensable in today's culture. With us
Speaker 1: to discuss the argument is Melissa Melissa Sherry, a lawyer
Speaker 1: with Lathman, Watkins and Washington. She filed a brief supporting
Speaker 1: the North Carolina law for groups that can beat child
Speaker 1: sex abuse and help victims of sex trafficking. And we're
Speaker 1: gonna have Mark Ruttenberg, who is the president of the
Speaker 1: Electronic Privacy Information Center, He foiled a brief urging the
Speaker 1: court to strike down the law. Melissa, UM, explain to
Speaker 1: me what your understanding of what this this law covers.
Speaker 1: So my understanding is based on North Carolina's position that
Speaker 1: it covers what we think of this true social networking site, So,
Speaker 1: like you said, sites like Facebook and Twitter, and does
Speaker 1: not go so far as the cover sites like The
Speaker 1: New York Times, Um, Betty Crocker dot com and a
Speaker 1: number of other examples that were in the Amigus briefs
Speaker 1: in North Carolina took that position before the court m
Speaker 1: and has defended it on that basis. Mark, what was
Speaker 1: the argument that Packingham made here? Well, he argued essentially
Speaker 1: that the North Carolina statute violated the First Amendment because
Speaker 1: of prohibited both the expression of speech such as the
Speaker 1: comment he had posted on Facebook, as well as his
Speaker 1: ability to receive information online. And of course, so much
Speaker 1: information is made available today on the Internet that to
Speaker 1: prevent somebody from getting access to a wide range of
Speaker 1: Internet websites would prevent them from getting access to a
Speaker 1: lot of protective speech. Melissa, why would it be okay
Speaker 1: to keep somebody off the Internet like this? So the
Speaker 1: North Carolina justification is that what you have here as
Speaker 1: a classies are registered sex offenders. To These are individuals
Speaker 1: who were previously convicted of a sex offense. There are
Speaker 1: a number of restrictions that are placed on sex offenders
Speaker 1: after their release and their sentences have ended, including UM
Speaker 1: having to register for example, on a number of other
Speaker 1: impairments that come with registration. What North Carolina was trying
Speaker 1: to do is find a way to prevent these offenders
Speaker 1: from having access to children. And while UM, you know,
Speaker 1: back in the day, you would think about places like
Speaker 1: parks and playgrounds and schools where UM kids would gather,
Speaker 1: and there are a number of laws preventing previously convicted
Speaker 1: sex offenders from going to those physical locations and having
Speaker 1: access to children. UH. In today's modern world, these are
Speaker 1: basically virtual places where children gather and where statistics have
Speaker 1: shown that offenders do have access to children are able
Speaker 1: to both get information and contact children through these sites.
Speaker 1: Market It's really hard to argue with that objective. Why
Speaker 1: isn't this just a matter of taking what states have
Speaker 1: always done in restricting sex defenders from physical places and
Speaker 1: applying it to a virtual world. I think it's important
Speaker 1: to understand that is a big leap, of course. I mean,
Speaker 1: you could easily justify restrictions on access to physical spaces
Speaker 1: such as a school or a park that doesn't implicate
Speaker 1: the First Amendment. But when you pass the state law
Speaker 1: that restricts a person's ability to get access to information
Speaker 1: where there's no direct risk of contact or harm, then
Speaker 1: you're squarely in the First Amendment. Realm part of the
Speaker 1: concern that I heard this morning, I was at the
Speaker 1: court for the arguments, and several of the justices we're
Speaker 1: saying that recognizing North Carolina is concerned, the statute itself
Speaker 1: nonetheless seems overly broad. In other words, if you're concerned
Speaker 1: about the possibility of communications between a convicted sex offender
Speaker 1: and a minor, then maybe you need a statute that
Speaker 1: is focused specifically on those types of communications and not
Speaker 1: this much broader reached to all commercial social networking sites.
Speaker 1: They even said that when you think about what constitutes
Speaker 1: a commercial social networking side, it's not always clear where
Speaker 1: the where the line is to be drawn I mean,
Speaker 1: you know, Facebook maybe an obvious example. I don't think
Speaker 1: it's obvious that the New York Times, where people are
Speaker 1: able to exchange comments and provide their identity and even
Speaker 1: profile images, could not be considered a social networking site.
Speaker 1: And certainly Twitter um interestingly, which came up several times
Speaker 1: during the argument this morning, is viewed very much as
Speaker 1: a social networking site, and still it's become one of
Speaker 1: the primary ways of receiving information in the United States.
Speaker 1: We're talking with Mark Rottenberg of the Electronic Privacy Privacy
Speaker 1: Information Center and Melissa Sherry with late Latham and Watkins
Speaker 1: here in Washington, d C. About the Supreme Court argument
Speaker 1: today on a North Carolina law that bars convicted sex
Speaker 1: offenders from uh taking part from using social media. Are
Speaker 1: many forms of social media Supreme Court herd arguments today.
Speaker 1: We'll talk more about that in a moment. You're listening
Speaker 1: to Bloomberg Law Michael beston June Grosser or in New York.
Speaker 1: I'm Greg Store here at the Supreme Court. We're talking
Speaker 1: about the Supreme Court arguments today on a North Carolina
Speaker 1: law that bars convicted sex offenders from using many forms
Speaker 1: of social media. A number of the justices were skeptical
Speaker 1: of the law and the arguments today just to Elena
Speaker 1: Kagan said that Twitter and Facebook have become incredibly important
Speaker 1: parts of our political and religious culture. Anthony Kennedy said
Speaker 1: that the communications that happened there are more significant than
Speaker 1: what used to go on in the paradiomatic public square.
Speaker 1: Our guests are Melissa Arvis Sherry, who is a lawyer
Speaker 1: at Lathman Watkins. She filed a brief helping to defend
Speaker 1: the law, and Mark Rottenberg of the Electronic Privacy Information Center.
Speaker 1: He filed the brief opposing the law. Melissa. A minute ago,
Speaker 1: Mark was talking about his view about why this law
Speaker 1: sweeps up too much, much more speech than necessary. Isn't
Speaker 1: there aren't there ways the state could uh do something
Speaker 1: more narrowly to actually get at uh people who are
Speaker 1: getting on social media to try to get in touch
Speaker 1: with miners, rather than you know, barring are all social
Speaker 1: media access. So there's certainly are laws that are more
Speaker 1: narrow I think the harder question is whether there's laws
Speaker 1: that can be equally or close to as effective as
Speaker 1: this law. And that's something that North Carolina was struggling
Speaker 1: with a lot of the more narrow examples actually do exist,
Speaker 1: either in North Carolina or in other states, and unfortunately
Speaker 1: they haven't been sufficient UH to stop the tide of
Speaker 1: of sex offenders, and so in North Carolina and other
Speaker 1: states are looking for additional options UH in other ways
Speaker 1: to get at these offenders before they re offend, and
Speaker 1: so UM in focusing on access, what this addresses that
Speaker 1: a lot of the other alternatives do not is stopping
Speaker 1: passive information gathering. So individuals that are able to access
Speaker 1: profiles and personal information of kids online in a very anonymous,
Speaker 1: passive way, find out what their likes are, what their
Speaker 1: dislikes are, figure out where they're going. You know, people
Speaker 1: put cell phone numbers on there and other personal information,
Speaker 1: and so by prohibiting access, it's meant to stop UM
Speaker 1: that information gathering before another child disabused. Mark were you
Speaker 1: s rise that it seemed like at least five justices
Speaker 1: suggested during the argument that they would rule for North
Speaker 1: Carolina resident Packingham that they were so familiar with social
Speaker 1: media because often they're not when it comes to cases
Speaker 1: like this. Well, I wasn't surprised that the argument seemed
Speaker 1: to take a pro First Amendment direction, as the justices
Speaker 1: were asking questions and making points. Um I was surprised,
Speaker 1: as you suggest, about the level of familiarity that the
Speaker 1: justices had with Internet services. It was interesting, for example,
Speaker 1: Justice Keig and Uh questioning the fact that the state
Speaker 1: had exempted so called single use services such as photo
Speaker 1: sharing services or or texting services, drew attention to the
Speaker 1: point that Snapchat wasn't covered under the North Carolina law,
Speaker 1: whereas Twitter was, And for people who are familiar with
Speaker 1: both Snapchat and Twitter, you might understandably be a bit
Speaker 1: more concerned about the use of Snapchat by sex offenders
Speaker 1: than you would about Twitter. But to even ask that question,
Speaker 1: and to make that distinction, considering the exemption the statute,
Speaker 1: you'd have to know a fair amount of about the
Speaker 1: two services. So I thought that was really a high
Speaker 1: moment in terms of the court's ability to look at
Speaker 1: the internet based services and try to draw an analysis
Speaker 1: that was relevant to the case before them. Melissa, given
Speaker 1: both the courts apparent familiarity with how the the Internet works,
Speaker 1: which could be surprising to some, and the fact that
Speaker 1: there does seem to be, at least based on argument,
Speaker 1: the possibility that the majority is going to strike down
Speaker 1: this rule, this law is overly brought. Could an alternative
Speaker 1: approach to something like this bid say that instead of
Speaker 1: being a blanket prohibition against sex offenders, a state could
Speaker 1: authorize judges to make an individualized determination that a particular
Speaker 1: sex offender, based on the facts of his case, needs
Speaker 1: to be kept off the internet, says a condition of
Speaker 1: probation or parole. I think it could. I mean, as
Speaker 1: far as the condition of probation or parole like. One
Speaker 1: of the questions that was asked during argument was exactly
Speaker 1: that whether that would be constitutional, and I think the
Speaker 1: sentiment was that that it would be. Um, of course,
Speaker 1: you know, probation or or parole if time limited in
Speaker 1: that respect, and to the extent sex offenders have the
Speaker 1: propensity or at least some of them due to to
Speaker 1: reoffend years into the future. It's a limited solution. Um.
Speaker 1: As with the other alternatives. Another one that was suggested
Speaker 1: by one of the justices that argument was whether there
Speaker 1: could be an app of some sort that would allow
Speaker 1: the state to essentially monitor Internet access for registered sex offenders.
Speaker 1: And you know the response of that was that it
Speaker 1: might be better for First Amendment purposes, but perhaps there
Speaker 1: are some Fourth Amendment problems with that proposal, but there
Speaker 1: you know, at the argument, there were a number of
Speaker 1: other alternatives that have been suggested. And if the Court
Speaker 1: were to decide that what North Carolina did here was
Speaker 1: too broader, wasn't narrowly tailored enough, I think the next
Speaker 1: important question from how the decision is written is what
Speaker 1: what can states do to get at this problem. I
Speaker 1: want to thank our guests Mark Rottenberg of the Electronic
Speaker 1: Privacy Information Center and Melissa Arbys Sherry of Lathman Watkins
Speaker 1: talking about the Supreme Court arguments today on the North
Speaker 1: Carolina law that would borrow many sex offender all convicted
Speaker 1: sex offenders of accessing many social media sites. Uh. This
Speaker 1: this looks to be, June and Michael, one of the
Speaker 1: biggest Supreme Court cases of the year. It sure does. Uh,
Speaker 1: you know, it's the justices have been very solicitous of
Speaker 1: First Amendment views here, even in facts where they petitioners
Speaker 1: are not particularly sympathetic, so not to surprise saying that
Speaker 1: they seem to be leaning that way.