Supreme Court Considers Whether N.C. Law Violates First Amendment

Feb 27, 2017
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The U.S. Supreme Court appears ready to strike down a North Carolina law that punishes registered sex offenders who use social media. Most of the justices voiced doubts about the law during oral arguments today. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: It was, to be blunt, sex day at the Supreme Court. The justices heard two cases both involving men who'd been punished for having consensual sex with a minor. In one case, a 21-year-old legal resident of the U.S. was ordered deported after he pleaded no contest to having sex with his 16-year-old girlfriend. That would not be a crime in 43 states or under federal law, but it was enough to get him deported as having committed an aggravated felony in California. In the second case, a North Carolina man was convicted first for having sex with a minor and arrested again seven years later because he signed up for Facebook and posted a message on it.

Lester Packingham was a graphics design student at the Art Institute of Raleigh-Durham when he was arrested in 2010 for having sex with an underage girl. He received a suspended jail sentence and kept a clean record for seven years, until he was arrested again, this time for violating the state's ban on social media. He'd posted a message on his Facebook account thanking God for not getting a traffic ticket.

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LESTER PACKINGHAM: I said, praise God I didn't receive a ticket. Praise Jesus, thank God.

TOTENBERG: In the Supreme Court today, Packingham's lawyer, David Goldberg, argued that the social media ban punishes vast swaths of core First Amendment speech that is totally unrelated to the government's interest in preventing child abuse. Questioned by various justices, Goldberg conceded that a registered sex offender might be barred from communicating with a minor on social media or barred from some sites as a condition of parole, but this law, he contended, is a far broader denial of a fundamental right to free speech.

Justice Ginsburg - some states take away other fundamental rights. They prohibit ex-felons from voting or having guns. Justice Sotomayor - is this law too broad, or is it not precisely targeted enough or all of these things? Justice Kennedy puckishly quoted Elizabeth Barrett Browning's line, let me count the ways.

Next up to the lectern was North Carolina Deputy Attorney General Robert Montgomery, who faced an immediate question from Justice Kagan. The president now uses Twitter, she observed. All 50 governors and 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 into those sites and find out what these members of our government are thinking or saying or doing. Indeed, some 50 million Americans use these sites for religious community purposes, she said.

Montgomery replied - there are alternatives to social media sites. Justice Kennedy - assuming we had a public square a hundred years ago, could you say this person couldn't go into the public square? Montgomery replied that registered sex offenders have alternatives like blogging, but that didn't seem to be a good enough answer for much of the court.

Justice Breyer - do you have a statute that bars convicted swindlers from discussing money? Answer - swindlers are not sex offenders. These are some of the worst criminals who have abused children, and there's a high recidivism rate. Justice Kagan - except that you exempt any website that provides a chat room or photo sharing, like Snapchat, where the most dangerous activity can take place.

Lawyer Montgomery - there are plenty of people who get information fine without social networking. Justice Ginsburg - the point is that by cutting off these people from Twitter and Facebook and many other sites, you're cutting them off from a very substantial part of the marketplace of ideas.

In the deportation case, the justices were almost as skeptical, noting for instance that the state law makes it a crime to have sex with a minor who is three years younger. Said Justice Kagan, that could mean it's a crime for a college junior to have sex with a freshman.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.