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March 2, 2017

"First, They Came for the Sex Offenders … "

The title of this post is the headline of this Slate commentary authored by Perry Grosssman that discusses Packingham v. North Carolina, the First Amendment case heard by the Supreme Court earlier this week (basics here).  The sub-headline summarizes the piece's themes: "We must speak up for the rights of those on the fringes of society. The Supreme Court’s ruling on sex offenders’ First Amendment rights will signal how much protection we can all expect."  Here are excerpts from the ends of an extended discussion of the case and its context: 

Looming in the background of the court’s consideration of this case are the Trump administration’s recent attacks on the First Amendment, minority rights, judicial independence, and the rule of law itself.  Though it’s a much different First Amendment context, President Trump’s executive order restricting travel by Muslims from seven countries is also a grossly overbroad restriction on a politically vulnerable minority that was enacted thanks to fearmongering, not evidence.  As lower federal courts enjoined the executive order, President Trump attacked the legitimacy of those judges — who then received threats to their safety — while members of his administration implied that the courts had no right to question the president’s judgment on matters of national security.  Factor in Trump’s claim that he was championing free speech when he threatened to withhold federal funds from UC–Berkeley after it canceled an event featuring Milo Yiannopoulos, and his promise to “open up our libel laws” to permit more lawsuits against the press, and it’s clear that the president’s guiding mode of constitutional interpretation is not originalism, but solipsism.  The president thinks the First Amendment protects speech and beliefs he likes, but not those he doesn’t.  This case thus provides an opportunity for the Supreme Court to brace the judiciary for its upcoming battles with the Trump administration and to provide a nervous country with some assurance that the protections of the First Amendment remain as robust as ever and available to all.

Go to any protest these days and you’re sure to see a sign invoking the words of Martin Niemöller, a Lutheran pastor who opposed the Nazis during the Second World War by famously stating, “First they came for the Socialists, and I did not speak out—Because I was not a Socialist.”  The message is simple but powerful: Speak up for the rights of those on the margins of society or you might yourself on the other side.

Court battles over the First Amendment have been frequently fought on behalf of unpopular groups as a means of preventing encroachment upon the rights of the rest.  Justice Stephen Breyer recalled this heritage during argument when he pointed to criminal laws directed at prohibiting communists from advocating for the overthrow of the United States government that had been struck down 60 years ago.  It is difficult to imagine a less popular group than registered sex offenders.  But speaking up for their rights now is critical at a time when the administration has shown its eagerness to brand people with whom it disagrees as “enemies” and to strip rights from politically vulnerable groups like transgender students.  And it has the fringe benefit of being a good strategy for making sure “they” don’t come for you too.

March 2, 2017 at 09:59 AM | Permalink


This analogy is unbelievably offensive to the memory of the victims of the Holocaust.

Posted by: David Behar | Mar 3, 2017 12:36:02 AM

Now, the question is: whether registered former sex offenders will band together as some Jews and others did during the Third Reich to defend themselves by whatever means necessary against both these laws and against vigilantes. The Jews of Warsaw actually fought in their ghetto against the Nazi occupiers even though the Nazis won out on that particular fight. At least the Jews fought back. Will former sex offenders do the same against Megan's Law, Civil Commitment, residential restrictions, and against vigilantes. What will happen?

Posted by: william r. delzell | Mar 3, 2017 9:47:05 AM

I suggest they litigate instead.

Posted by: David Behar | Mar 3, 2017 9:56:43 AM

Yes David Behar it seems unbelievably offensive to the Jews. At least consider a category of sex offenders, (I know our society lumps them all together), who are convicted of possession of child pornography. The vast majority of whom are otherwise law abiding citizens, but have found free, readily available CP on the internet. Again, they are otherwise law abiding, but because of some as yet to be determined psychological impairment, (see USA v. Hardrick), they are engaging in a internet crime that comes with absolutely zero warnings. Mr. Behar, we are a nation of laws and consequently our nation has warnings for just about everything. Many of these warnings seems very obvious to most of us, but just look around you. Everywhere you go there are warnings. Yes, I know child exploitation is a terrible offense. Again, no warnings. (see USA v. Hardrick). Moreover, 92-96% of child sexual abuse is by someone the victim knows, (i.e., family member), goes undetected. (research this blog if you don't believe my research). So we are left with a group of individuals who have harmed no one. Many, many experts on this subject consider these people to have a clinical problem primarily devoid of criminal intent. One thing is certain, these people have bad thoughts. So did Omar Mateen, why didn't we charge him with a thought crime? (He was questioned by the FBI on three separate occasions).

Posted by: tommyc | Mar 3, 2017 11:47:24 AM

Tommy. I am with you.

1) The legalization of child porn is associated with a 40% drop in the sexual abuse of real children;

2) sex offender registries are rent seeking regulatory quackery, worthless to the victim they were named after, Megan and Jessica; those little girls would still be with us if their rapist/murderers had not been released;

3) the subscription to child porn sites by the FBI is a major government subsidy, and has resulted in our now having 4 million child porn web sties;

4) registries with 10 year old offenders who took a leak in an alley, or 19 year old boys who had younger girlfriends make the entire field look really stupid.


Posted by: David Behar | Mar 3, 2017 1:47:30 PM

There is no shortage of these sex offenders / sexual deviants / homosexuals who became victims of this state organized murder, commonly referred to as the "Holocaust". Your exclusion of their deaths and suffering from consideration is unbelievably offensive.

Posted by: Tedesco | Mar 3, 2017 4:26:27 PM

I find that the pot is calling the kettle black. Our rules and regulations are not followed by the rules and regulation makers. The punishment does not fit the "crime" in most cases and those that fail to tell the truth are not punished. How many after years of prison are determined innocent? If sex offenders are on a list for life then why are they in public?

Posted by: LC in Texas | Mar 4, 2017 10:16:23 PM

The registry is a CASH COW for state and government. Ridiculous and apparently uncapped fees which states increase whenever they need money to subsidize some type of program. (One of the southern states recently wanted to increase registrant fees to fund a state trooper shcool!) What other crimes saddle people who have served their time with a lifetime on a humiliating and punishing public registry that has proven to be of no value at all except to make money for the government?

It's time to do away with the registry. If there are some people that are so dangerous that they need to be watched constantly, then maybe they shouldn't be let out of prisons or psych hospitals to begin with. Stop severely punishing everyone for the violent crimes of a few. There's about 850,000 on the registry, approx. 5,000 that are violent offenders. If they need to be watched, watch them and leave the rest of the people who just want to get on with their lives the hell alone.

Posted by: kat | Mar 5, 2017 11:14:39 AM

Kat. I agree with you. I am going to court on another matter. I want a ruling of first impression declaring a rule, "regulatory quackery." That means it is not safe, nor does it achieve its self stated goal. If that can be obtained, it should be applied to the sex offender registry. Neither Jessica's nor Megan's Laws would have helped Jessica nor Megan. Megan opened the door to her neignbor, and was taken. Jessica lay in her bed with her blue dolphin plush toy. She was alive in the closet when the police visited the known sex offender in the trailer acorss the street from hers.

What would have helped Megan and Jessicabest? Killing those guys when the lawyer had the chance. Instead, they were protected, privileged, and empowered, to maintain a few lousy lawyer jobs. The loss of those two little girls is 100% the fault of the lawyer profession.

Second best would have been to not loose them on the public.

These sex offender registries are just more lawyer bullshit. Their lucrative nature makes them, with malice, as professional malpractice on a mass scale.

In my matter, I really want to take down my lawyer run state. I want it bankrupted, and the lawyers fired. To deter.

Posted by: David Behar | Mar 5, 2017 5:58:49 PM

Then they let the sex offenders go, after the FBI was attacked in court.


Posted by: David Behar | Mar 6, 2017 5:24:34 PM

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