Transcripts For CSPAN Packingham V. North Carolina Oral Argu

An hour. Bout chief Justice Roberts well hear argument first this morning in case 151194, packingham v. North carolina. Mr. Goldberg. Mr. Goldberg mr. Chief justice, and may it please the court. There are three principal features of North Carolinas law that make it a stark abridgement of the freedom of speech. First, section 202. 5 reaches vast swaths of core First Amendment activity that is totally unrelated to the governments preventative purpose. Mr. Packingham is not accused of communicating with or viewing the profile of a minor. He violated section 202. 5 by speaking to his friends and family about his experience in traffic court. And if today he were to view or respond to any of the thousands of twitter messages about his case in this court, that would be a felony. Second, the law does not operate in some sleepy First Amendment quarter. It operates and forbids speech on the very platforms on which americans today are most likely to communicate, to organize for social change, and to petition their government. Third, section 202. 5 Justice Kennedy please go ahead. Please go ahead. Mr. Goldberg is a criminal law, your honor, that imposes punishment for protected First Amendment activity without any regard to individual culpability or lack of culpability. To individual culpability or lack of culpability. Said the state imposes condition of perl . I think they have much more authority and states do this all the time. They limit peoples First Amendment rights. If you have something as for anyone whos committed a sex offense, i dont think they could do that. Ginsburg the more awaymental right is taken and prohibits prohibitsvoting and bearing arms. Areoth of those rights different from the First Amendment. They are equally fundamental but they are different. North carolina draws the line at people who have completed their parole and time of supervised release. But in richardson versus ramirez, the court looked at history and tradition and said there was affirmative sanction for disenfranchisement. If you look at that same franchise in which dealt with in the civil war, you did not need to restore their First Amendment rights and with the Second Amendment, when someone is convicted of a crime, they immediately lose their Second Amendment rights. And schusteron case, this court vindicated the rights of someone who was a serial killer who wanted to. Rite from prison it is difficult to look at the text in history. We dont have a lot of history concerning access to websites had all of the sorts of things we are dealing with here. I dont think that is a useful guide. When we talk about the history, the history is there is not a history of taking away peoples First Amendment rights. When the court says First Amendment rights are inalienable you dont have a lot of history of having such sites or access where they can provide broad access to minors of a sort that is problematic with respect to this individual. I dont disagree with you. We know as with violent video games and any manner of new not inogy, there is europe or reconstruction era analog. Suppose we try to translate this into terms we are familiar with. Suppose the state enacted a law with anyone convicted of kidnapping children from visiting a nursery school. Would that be a violation of the First Amendment . I dont think so, your honor. The framing did not ply to the states. Dont know that there is a First Amendment right to visit a kindergarten and that is fundamental here. This law only applies in the places where anything that happens is a First Amendment activity where associating petitioning someone who was a sex offender could not communicate with a minor. Would you agree that would be constitutional . It would be much less restrictive and that shows why this law is unconstitutional, and thats what deep prosecutors there is a concern here for the safety of children, so im asking of course it is restrictive, would it be constitutional . I think it would be. I think the difference is if you take the narrow tailoring test, which is fundamentally this test said a quantitative and what percentage of what you suppress implicates the interests, when you are talking about communicating with miners were viewing the pages of minors, that is going to the heartland of the of what the state is asserting. Here, everything they are suppressing is different, as to whether it is core speech, the petitioner was convicted of ising thank you, jesus, god good about a parking ticket to his audience. As thisrrowly tailored example, it would be lets say someone convicted previously of committing a sex offense using the internet from contacting on the internet a person known by that person to be a minor without the consent of the parents, that would be a violation of the First Amendment . That would be constitutional, your honor. Im sorry if i was not clear about that. There areill say narrowly tailored questions. Here tosay to not say that hypothetical law, one of the concerns that i think you have handled, this applies to and one on the registry the theory that as a collective, they have a higher rate of recidivism. Problematichats a assumption, especially with a population like this that is so heterogeneous and constantly being evaluated on an individualized basis its not. Its not clear to me why you would take peoples First Amendment rights away for life if the theory Justice Sotomayor what do you think your best argument is . Is this statute too overbroad . Does it fail scrutiny, whatever level we adopt . Whats the mr. Goldberg well, i think Justice Sotomayor what do you think i know you say all of those things. Mr. Goldberg yes. All of the above, your honor. And this is not a case where the level of scrutiny is going to make a difference. Justice kennedy Elizabeth Barrett browning, let me count the ways. Mr. Goldberg exactly, your honor. So Justice Kennedy but let me ask you, suppose there were an app, a program in which officers could monitor your video and your and your cyber and your cyber equipment and disclose if you are communicating with minors. Could that be a law that every that every convicted person has to consent to that app and to that surveillance . Mr. Goldberg well, i think that goes to the question of which you dont need to answer and i want to answer Justice Sotomayors question as well in this case. What does the status of being a registrant mean in terms of somebodys Constitutional Rights . I think that is clearly a much less restrictive from a First Amendment perspective, because then, again, people like mr. Packingham, anybody who wants to do the things that are harmless and fully protected is able to do it. People have and it is effective detection and deterrent. So from a First Amendment perspective, thats a home run. There is a Fourth Amendment question there, which is, ordinarily, once youre done with supervised release, you have full Justice Kennedy First Amendment for home run, who hit the home run . Mr. Goldberg im saying for the state, your honor. I think it does everything. Its perfectly tailored in a certain sense, except for the state has a sense of what you may be up to, which is a concern. But, essentially, theyre able to deter people, detect people. And the people who want to speak and exercise their core First Amendment rights. Justice kagan well, i take it mr. Goldberg have no problem to check when a person is doing and some kind of prophylactic remedy is needed, thats not unheard of. And thats not unheard of in First Amendment law. I mean, if you think of a case like burson, which is the 50 feet with mr. Goldberg sure. Justice kagan in the polling places, thats kind of a prophylactic rule. So why wouldnt the same be appropriate here . Mr. Goldberg well, your honor, we obviously, there are times when prophylactic rules are permissible under the First Amendment. Mr. Packingham, when he was convicted, got a condition that said you shall not have any contact with the specific victim of this crime. That would otherwise, if that were applied to you or me, that would be an abridgement of our freedom of speech. So theres no general rule. The court has said repeatedly that you should be suspicious of prophylactic rules because, ordinarily, you dont want to you want to allow people to speak. But even as weve been talking about rules like that are focused on teenagers on the internet and having specific contact with them, those are prophylactic rules too. So i dont think its the question is, can you do it at the first step . And i think Justice Breyer what is what was your answer . Which i forget. A statute prohibits a convicted sex offender from being spending more than five minutes at a childrens playground. Is that constitutional or not . Mr. Goldberg i think thats constitutional because Justice Breyer all right. Mr. Goldberg i dont Justice Breyer if thats constitutional, instead of what most of the briefs do, is interpret the statute as broadly as possible, this is a facial challenge. What about trying to interpret it as narrowly as possible . And as narrowly as possible, it seems to me a necessary condition is that a violator cannot go to a site that facilitates the social introduction between two or more persons, and these are children theyre talking about, i guess for two or more persons for the purposes of friendship, meeting other persons, or information exchanges. So we have to say or related information exchanges. And now we have a definition that sounds as if theyre talking about dating sites, or it sounds as if theyre talking about related play group sites, if you take younger children. And is it possible to read it that way . And if you do read it that way, is it constitutional . Mr. Goldberg well, your honor, a couple points. The first answer to the playground, we i think you start with, what is the First Amendment right that is being abridged . Im not sure that i see a First Amendment right being abridged. Justice breyer yeah. But thats what i wanted to be i wanted to get your answer, and i think i have that. Mr. Goldberg and then Justice Breyer but im really interested in the narrow possibility of interpreting it narrowly, as i said. And on that basis, its facially constitutional, though it could be applied unconstitutionally. Thats what i want your answer to. Mr. Goldberg so, your honor, this is a criminal case. It doesnt arise as a civil suit in district court. This is first and foremost an asapplied challenge because the relief that were seeking is to overturn the Justice Breyer youre not youre not attacking the statute. Youre only attacking it applied to your client . Mr. Goldberg in a criminal case, you, the court has the power to say, and i think its appropriate in this case that this, the problem here is the problem for every application. And thats what weve argued. Justice breyer ok. Mr. Goldberg and clearly Justice Breyer thats then were back to my question. So im treating it as an asapplied challenge. I dont want to just repeat the question. Mr. Goldberg right. Justice breyer i want to get your answer to the question. Mr. Goldberg right. So the answer is, your honor, that this that narrow construction, im not sure that thats possible, and that narrow construction isnt going to be, in this case, make any difference, because as i understand your hypothetical statute or construction, that is not mr. Packingham did not violate the law, but Justice Breyer wait dont you see, all im doing is reading one word before information exchange. And the word im reading is related information exchange. And as so interpreted, that clause, too, which youre much more familiar with than i am mr. Goldberg sure. Justice breyer seems to be talking about dating sites or the lower age level equivalent. Mr. Goldberg i dont Justice Breyer if thats it does what it says, facilities the social introduction between two or more persons for the purposes of friendship, meeting other persons or related information exchanges. Ive now got it a social dating or equivalent site. Mr. Goldberg right. Justice breyer i think i can say that. Now, if i say that, is it constitutional . Thats what im trying to get your answer to. Mr. Goldberg if it were limited to dating sites, im assuming that it is constitutional, your honor. I dont think the state has ever said that this is about dating sites. They say theres a category of Justice Ginsburg well, they couldnt because of your case. Mr. Goldberg right. Exactly. Justice ginsburg so your case involved boasting about getting off a traffic ticket. Mr. Goldberg right. So that, that is my first and most important point, that mr. Packingham was not on a dating site. Justice breyer so then the answer to this would be they have not applied it that way here, and given the way theyve applied it here, they cant do that. Mr. Goldberg i dont Justice Breyer now, were going to have 40 other cases involved. Mr. Goldberg i dont think theyve ever applied it. I think the main focus dating sites tend to have age restrictions that go, apply only to adults and so i think its their position that those are excluded from this. I theyre i think the states position, and you can hear from them, theyve never proposed that as a construction because they want to go after these sites, the classic socialnetworking sites. Justice alito yeah, the interpretation that Justice Breyer the language that Justice Breyer is referring to and other language in this statute, i think, could, for the purpose of avoiding First Amendment problems, be limited to core social networking sites, including facebook and things like facebook, google plus, that sort of thing, and excluding a lot of the other sites that the Electronic Frontier says are included, like the New York Times and Betty Crocker and things like that. So it would be limited just to social networking sites. Would you agree that it could be read at using constitutional avoidance, it could be narrowed to at least those . Mr. Goldberg so honestly, your honor, im not sure that it can, but its very important for the constitutional question that that is irrelevant. And this goes back to Justice Sotomayors question, which was what is how do we win this case . What is the what is the biggest problem with this statute . And the biggest problem is Justice Alito well, just to put it in context. It is important for purposes of an asapplied challenge because if what your what your client used was a social was facebook, right . Mr. Goldberg right. Justice alito ok. Mr. Goldberg so Justice Alito even if it were limited to to those mr. Goldberg right. Justice alito you would say its unconstitutional. Mr. Goldberg our positionand for the very reason weve talked about, which is that this just like the law in the jews for jesus airport case from los angeles that said no First Amendment activity in this place, this is a law that says no First Amendment activity, and it says it indiscriminate, so Justice Sotomayor counsel, i mean, one of my problems with all of these sites today is that none of them are purely or very few of them are purely anything anymore. Mr. Goldberg right. Justice sotomayor take Something Like linkedin, which many, many people in our Society Today are looking for jobs there, but High School Students are permitted to look for jobs and to post their data, personal data on that site. So, is that traditional social media or not . Mr. Goldberg i think the state says that it is because it meets the definition. I just want to get back to Justice Alitos question Justice Sotomayor but thats my point, which is im facebook, many people, many businesses are using it for commercial advertising. Mr. Goldberg right. And thats very true and there was another defendant who was prosecuted alongside mr. Packingham who was an i. T. Person, mr. Christian johnson, and he lost his job because his employer said its impossible for you to do your job if you cant get on these sites, so Justice Sotomayor even if you dont Justice Kennedy well, all of all of these questions implicate what Justice Sotomayor asked earlier and i and others interrupted you. What is the category that we use . If we rule for you, we say this statute is a violation of the First Amendment because, what what are