Supreme Court unconvinced by North Carolina’s Facebook argument

By Sandy . . . “There are three principal features of North Carolina’s law that make it a stark abridgment of the Freedom of Speech.” These words, spoken by attorney David Goldberg, opened the oral arguments of the petitioner Lester Packingham to the Supreme Court today, Monday, February 27.

At 21, Mr. Packingham was convicted of taking indecent liberties with a minor—a non-contact offense in North Carolina. As a result he was placed on North Carolina’s sex offender registry and subjected to the state’s prohibition against having or accessing an account on any online platform that allowed exchange of ideas and on which minors were allowed to create and maintain accounts.

In 2010, Packingham violated this law when he took to Facebook to claim, “God is good,” over having a traffic ticket dismissed. As a result he was arrested and charged, not for what he said but for where he said it. He and his attorneys have fought the charges for the past six years, a fight that culminated in arguments before the U.S. Supreme Court.

At the heart of the argument is the First Amendment right to free speech. Packingham has satisfied all court-imposed requirements and has successfully completed his criminal sentence. He is under no state or federal supervision. He has not re-offended or come under scrutiny for any illegal activity except using Facebook to express his joy about the outcome of a traffic ticket.

The National Association for Rational Sexual Offense Laws (NARSOL) and North Carolina RSOL supported Packingham’s First Amendment claims by way of an amicus brief filed on his behalf. We contend, as do Mr. Packingham and his attorneys, that depriving over 17,000 North Carolina citizens of social media access just because they are on the sex offender registry is an egregious abuse of the state’s power and does virtually nothing to address the state’s compelling interest in protecting minors.

The ban applies to all registrants regardless of whether or not their original offenses involved a minor, whether or not those offenses involved Internet use, or whether the persons were engaging in “stalking” or “grooming” behavior towards a minor. Such a ban makes illegal perfectly innocent and legal activities such as participating in or even following political discussions on Twitter, advertising one’s home business on Facebook, or commenting on a variety of opinion pieces on almost all online media comment platforms.

If the state of North Carolina is convinced that its youth are at risk from citizens on the registry due to contact through online activities, a ban on such activities can surely be tailored more narrowly to address real criminal conduct rather than cutting such a wide swath through the heart of the First Amendment.

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Here’s how other media outlets are covering oral arguments:
ScotusBlog
The Washington Post
Bloomberg

 

22 comments for “Supreme Court unconvinced by North Carolina’s Facebook argument

  1. Bill
    March 2, 2017 at 12:47 pm

    Has anyone heard anything on Michigan’s request for review from the U.S. Supreme Court?

    I believe they submitted it in Mid December after the U.S. Supreme Court denied the emergency stay request on the lower courts ruling.

    • rwvnral
      March 2, 2017 at 5:20 pm

      Watching for it. Don’t see it.

  2. Rajendra
    February 28, 2017 at 11:25 am

    Can we sue Homefacts.com? it posts people’s photograph with the label, thus making our life even more difficult when we are trying to survive.

    • NCRSO
      February 28, 2017 at 7:44 pm

      Unfortunately, I don’t think there’s much of a leg to stand on against Homefacts, and you’re not the only person battling with that. The good news is that if this law gets struck down, you can create a dozen social media profiles and keep them active and dynamic, which will push Homefacts off to page 2 of Google results – but you’ll have to put your real name on everything!

      • Jeremy
        March 1, 2017 at 12:06 pm

        Since my state does not have such a ban like North Carolina tried to impose, I have been trying to do exactly what your suggestion is for over two years now. Unfortunately, Homefacts is not the only site that copies information from the registries. Furthermore, these sites have really high search engine rankings as a whole, so social media accounts don’t always bump them unless they are highly active accounts. I have successfully bumped Homefacts to page 3 for my name, but another company doing the same thing ended up on page one of Google. My Bing results are a different story though. There is nothing on my status on Bing until about page 3.

        I wonder if our argument could be equal protection of the law or something like that. If an offender had a similar name to a celebrity, their status would basically remain hidden online without regard to social media, however, if the offender has a rather unique name (of which I qualify), they will have to put their name on as many links as possible to bury the damning links. This doesn’t seem fair to me.

    • jon doe
      March 1, 2017 at 9:42 am

      hey rajendra how are you? may i ask what state u reside in? i am from same country as you are and in same boat in this registry and it has messed up my entire life and not just mine but family as well.

    • NH Registrant
      March 2, 2017 at 1:32 am

      Homefacts, City-Data, and Mugshots.com all run mirrors of the Registry. They will extort a fee from a Registrant that asks to be removed. All 3 of those sites don’t remove Registrants from their sites after they are removed from the Registry either by being deceased or having served their required duration on the Registry. But, nothing is being done about that. And nothing ever will. The ONLY people who care about our rights are our family members, loved ones, and NARSOL.

      • NH Registrant
        March 2, 2017 at 2:41 am

        So, basically, what I am getting at is: we all have to stick together. Only together can we hope to affect a positive change on the situation we are now in. If this case is successful, it’s a GREAT sign!

  3. George
    February 28, 2017 at 9:23 am

    I concur that Goldberg misplayed in his argument when he didn’t orally state the well documented concerning low recidivism rates. This would have opened the door for future arguments that may be heard in this court.

    Yes, I know it was documented in the brief, however he should have voiced it during the argument and especially after his second chance to address the court.

    Does anyone have a good reason on why he didn’t bring this up?

    • Fred
      February 28, 2017 at 10:58 am

      Its not a political debate where the goal is to debunk your opponents rhetoric. The well documented evidence was submitted approporiately and there was no reason to insult the Justices’ intelligence or waste their time by rehashing what they are already aware of. To do so would be simply postering. The state is handling that part fine, let them continue it.

      • rwvnral
        February 28, 2017 at 6:07 pm

        That’s well put, Fred. What’s really going on during oral arguments is that the justices are communicating with each other by using their questions to the attorneys to point out how they are understanding the contours of the case. All the really important statistical data and substantive arguments have already been made through the briefs…which most of the justices will have had their clerks read and summarize. They’re not ignorant about the facts or the statistical data. If anything, they don’t believe that data is necessary for a final disposition of this particular case. But, again, oral argument is not about the attorneys–it’s how the justices talk to each other about how the case is going to be resolved.

  4. Jeremy
    February 28, 2017 at 12:01 am

    I am very confident that this case will be decided in our favor. Many of the judges tore the state’s claims apart as did the petitioner’s response brief. I was a little concerned in the beginning when one of the justices was trying to find a way to make it constitutional as their precedent requires, but the petitioner’s lawyer navigated those questions like a pro. I loved Justice Breyer’s questioning regarding applying these same sort of restrictions against other classes of criminals. The state’s only answer was, “but… but… these are sex offenders!” (not exact quote of course)

    I also noticed that Justices Thomas and Roberts did not join in the discussion. This is not really a surprise for either of them. Thomas has a long history of dissenting based on legal precedent though. I feel this case has the legal precedent well on our side, so he may characteristically concur in the judgment but write a separate opinion. Roberts is kind of a wildcard here. He traditionally approves a lower court’s judgment if there is any possible way to make it constitutional, regardless of the wisdom of the decision. He has long maintained that the wisdom of the legislature is not an issue for the courts to decide.

    I can’t wait to see what happens here.

    GOOD JOB NARSOL! Your brief was very well articulated and brought the entire debate regarding the scope of the registry to full view. You make me proud!

  5. Tuna
    February 27, 2017 at 10:47 pm

    Once again, there was an opportunity missed when NC brought up recidivism rates and Goldberg did nothing to rebut it. When is an attorney in one of these cases going to take a stand on this, to dispel the frightening and high myth?

    • Jeremy
      February 27, 2017 at 11:45 pm

      It was dispelled many times in the petitioner’s brief, the response to the state’s brief, and the many amicus briefs (including the one by NARSOL) in this case. While it didn’t come up in oral argument, I think it is very safe to say that the judges are very well informed about the true evidence regarding recidivism of sex offenders.

  6. david
    February 27, 2017 at 9:41 pm

    NC brought up “the high rate of recidivism” as a reason to punish SO’s by denying them social media access. Of course they have no data to back up this claim because there is none. All legitimate data says SO’s have a very low rate of re-offending. Data that’s been compiled by the D.O.J.

    Time to bury this myth about SO’s being at high risk to commit a new sex crime. It’s a dangerous time- with “alternate facts” becoming a thing. Unless you are Schrodinger’s cat, something either exists or it doesn’t. I sure as hell don’t want my life ruined over a lie. Not more than it already is.

    Glad that NC case sounds like it may go our way. At least our cause is getting good coverage. What i’ve heard on the radio sounds positive and unbiased. If this goes good…what next?

  7. February 27, 2017 at 9:19 pm

    Tomorrow is my day as well for my case here in VA. While I could care less about face book or any of the other things one has to realize that options are better. They can give me more time on Probation or they could give me a second chance but when one really uses common sense and knowledge about this whole matter. They are just holding one in bondage for there vain purposes.

    While one can do nothing against the truth but for the truth its a matter of trust. Sometimes I wonder if lying is still legal for those to stretch. One has to understand that lawyers want to win but in the end the truth will come out but before that one has to be honest with themselves. In other words a lot of this has to do with self-centered mankind. Just pray for me tomorrow Brenda and all others that want justice in all this ordeal.

    • david
      February 27, 2017 at 9:50 pm

      Good luck tomorrow James! I don’t miss FB that much either. But if the President is using Twitter to communicate…we damn well better have access to Twitter. Plus social media is the platform everyone uses to communicate. If you have a Cause, like we do, FB and other social media is how you organize. We are denied the usual methods in how we can tell our story to the world. Our freedom of speech is limited, one could say…

    • Jeremy
      March 4, 2017 at 8:38 am

      James, I haven’t seen you comment on any articles recently, so I fear the worst. Is everything ok?

      • sandy
        March 4, 2017 at 9:26 am

        I don’t think that James will mind my passing on his news. He is not in jail, but he was told that he should not be on this site posting comments. He is complying with the directive and thankful to still be on probation rather than a more stringent alternative.

  8. NCRSO
    February 27, 2017 at 6:25 pm

    This seems to have gone very well, and as I predicted, North Carolina danced around the issue in question by talking about everything else but the matter at hand. Hopefully whatever they replace this law with will be narrowly tailored and fair. One also hopes that it won’t be retroactive; pretty much every RSO in NC needs to get signed up for whatever services they want on day one after the law is struck down! Don’t forget to go to your local sheriff’s office and provide them with your new handles!

    • Lovecraft
      February 27, 2017 at 9:16 pm

      Well as long as you use the same email adresses they have on file with your social media accounts I dont think you have to report anything else. Also worst case is they make a new law and by that point the nc lawsuit will be nearing maturity and i think we will at least get an ex post facto ruling out of that so it will free all current registrants from any social media ban.

      • NCRSO
        February 27, 2017 at 10:59 pm

        If handles are identical they can’t reenter them into the system easily. It would be courteous to inform them, though, if you are signing up for these types of accounts. And of course, if the user-facing handle is different from your login username, you are required to report the user-facing handle.

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