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February 27, 2017

"How Trump's Twitter use could help bring down NC sex offender law"

The title of this post is the catchy headline of this news article providing a summary of today's Supreme Court oral argument in Packingham v. North Carolina, which involves a First Amendment challenge to a North Carolina law a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites.  Here are excerpts from the press account:

A Supreme Court justice pointed to President Trump's use of Twitter during arguments in a challenge to a North Carolina law that forbids registered sex offenders from using social media.

The law, Justice Elena Kagan said, makes it illegal for a group of people to communicate with the president using his favored form of communication. "This has become a crucially important channel of communication," Kagan said.

The justices heard oral arguments Monday in Packingham v. North Carolina.  Lester Packingham is a registered sex offender who posted a statement on Facebook celebrating the dismissal of a traffic ticket.  Police in Durham, N.C., indicted him for breaking the state's 2008 law that bans sex offenders from using social media that allows children to be members, including Facebook, Twitter and Instagram....

Questions from Kagan and the three other liberal justices suggested they are concerned the law overly restricts free speech. It "forecloses some of the most important channels of communication in our society," Justice Sonia Sotomayor said.

Kagan said in addition to blocking a channel of communication with President Trump, the ban also restricts how sex offenders interact with lawmakers and with religious groups. "These sites have become embedded in our culture as a way to exercise constitutional rights," Kagan said.

Senior Deputy Attorney General Robert Montgomery for North Carolina said sex offenders have alternative ways to express their first amendment rights. The law, he said, is a protection for children against sex offenders who have a high rate of repeat offenses....

Conservatives on the court asked few questions.  Chief Justice John Roberts noted the lack of precedent in a case dealing with social media. Justice Samuel Alito said perhaps the law could be narrowed to impact fewer websites.

Amy Howe at SCOTUSblog here has a more fulsome account of the argument under the heading "Justices skeptical about social media restrictions for sex offenders."  This full transcript of the SCOTUS oral argument is available here.

February 27, 2017 at 05:27 PM | Permalink


Speech may be used for seduction and ensnaring sex victims. Yet, a law could not pass mandating total silence for a sex offender.

Social media is better for law enforcement. All communications are password protected, linked to email or telephone numbers, have time stamps, and IP addresses. By the way, this is also true for the anonymous commentators of this blog. With 5 minutes of effort, their names and physical addresses may be obtained. Thus, social media is more desirable for law enforcement people who can review them at the time of their choosing.

Banning social media by sex offenders is another example of lawyer stupidity. Social media is law enforcement's best evidence tool ever.

Posted by: David Behar | Feb 27, 2017 5:54:35 PM

This one should be 8-0.

Posted by: federalist | Feb 27, 2017 7:36:09 PM

The government still likes to use alarmist and fake news statistics, I see. Why hasn't that been corrected?

Posted by: Anon | Feb 28, 2017 4:01:02 AM

Continued de facto disenfranchisement of former sex offenders such as the prohibition against their use of certain databases, along with other restrictions against former sex offenders, could one day have a radicalizing effect on this group of former felons. They might decide they have nothing to lose about organizing or even arming themselves in self defense and in seeking revenge against these restrictive laws. They might decide to outright defy the restrictions against their use of Face Book, etc. as a way of getting back at law enforcement.

It's a wonder that a majority of former sex offenders thus far have not formed groups similar to the Black Panthers, the Socialists, etc. in forming themselves into self-defense groups. It is a wonder--and a relief--that none so far have been tempted to resort to terrorist attacks against sex offender registries, politicians, etc. But one day, we might push enough former sex offenders too far that they will do what people in Tunisia, the Philippines, and elsewhere have done when they decide they want human rights and an end to dictatorship.

Posted by: william r. delzell | Feb 28, 2017 9:25:06 AM

According to Senior Deputy Attorney General Robert Montgomery for N. Carolina "the law is a protection against sex offenders who have a high rate of repeat offenses". Where did he pull that erroneous tidbit from? These officials need to get their facts straight.!

Posted by: kat | Feb 28, 2017 9:34:08 AM

kat, when you argue that, you impliedly concede that if he's right (or close to being right) that the law should be upheld.

The real issue--can government impose a substantial burden on the First Amendment rights of those who have served their sentences after the date of the acts giving rise to the criminal judgment? The answer, it seems to me, is no. And it doesn't seem remotely debatable.

Posted by: federalist | Feb 28, 2017 9:44:17 AM


I agree with you 100%, it should be an 8-0 ruling but, I've seen enough of Alito, Roberts, Kennedy, Ginsburg and Thomas pull "law" out of their butts. Activist justices are not only liberal. Then future miscreants, er, I mean lawmakers will be emboldened to do more damage to the Constitution and the legal community will have to keep polishing those turds.

Posted by: albeed | Feb 28, 2017 10:04:49 AM

Will not be 8-0. It will be 7-1 or 6-2. Alito will dissent, Thomas may dissent. On the First Amendment, Alito has been in the minority on several cases involving non-traditional speech, and his questions in oral argument seem to suggest that he does not see the burden in this case as substantial. His dissent will probably suggest that this is nothing more than a time, place, and manner restriction.

Posted by: tmm | Feb 28, 2017 10:12:17 AM

The question seems fundamental---how can the government tell a free citizen he cannot speak in the manner he chooses?

Posted by: federalist | Feb 28, 2017 10:36:26 AM

Federalist rightly asks, "how can the government tell a free citizen he cannot speak in the manner he chooses?" Answer: Because the person here is not a "free citizen." By virtue of his felony conviction he has suffered "civil death." Although this principle of the common law no longer exists in theory, in practice it is alive and well.

Posted by: anon | Feb 28, 2017 3:33:14 PM

You've got no argument from me on that point.

Posted by: kat | Mar 1, 2017 10:39:21 AM

I listened to the oral argument.

JUSTICE GINSBURG: Suppose the law simply said that someone who was a sex offender could not communicate with a minor on social media. Would you agree that that would be constitutional?

MR. GOLDBERG: So I -- I think it probably would be, Your Honor.

So, it was granted "the government [can] tell a free citizen he cannot speak in the manner he chooses" in a narrow way. For instance, a minor high school student answers a tweet. A covered sex offender can not directly respond to the tweet of the minor.

At some point, this is problematic -- if a person serves their time, ten years later, they really shouldn't need to worry about interacting verbally online in such a way. But, sex registry laws raise various problems of constitutional dimension.

Posted by: Joe | Mar 3, 2017 4:55:44 PM

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