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