The Packingham vs. NC Oral Arguments

I am willing to bet the various agencies within the anti-registry movement were waiting with anticipation the results of the Packingham vs. NC arguments. It was a rare privilege to see the spectacle unfold before my eyes. At 7:30 am on Monday, February 27, I met with a staff member from SOSEN in hopes of being among the few able to get inside the hallowed halls of the US Supreme Court to listen to the oral arguments in person. However, when we arrived a long line had formed long before sunrise. Our hopes of getting inside for the arguments dimmed as news that the courtroom was full and that a new line was forming to hear a mere three minutes of oral arguments; thinking three minutes was better than nothing, we got in the three minute line. Once inside, we were prompted to put all electronic items in lockers and hang up our coats. We were led up a flight of marble stairs and made to line up single file. Then, a minor miracle happened– there were 30 seats open for the full oral argument and we were just within the 30. Thus, we managed to hear the entire argument, albeit missing the first few minutes and being seated in the back of the room and next to a pillar. It was hard to see and hard to hear, but at least we were one of the lucky ones.

(The media has already reported many important details and the transcript of the oral argument is already online; please note I am writing this article based on my personal notes and observations.)

The lead attorney for Packingham was already up by the time we were seated. Justice Kagan was questioning the Packingham attorney on a “prophylactic” case in which SCOTUS had ruled that political messages could not be passed out within 50 feet of a polling place. Justice Breyer had caused the Packingham attorney to fumble when asking if the attorney felt physical presence restrictions were constitutional. It appeared that the attorney conceded he felt they were. (I may have heard wrong but I was angry nonetheless.) The Packingham attorney was asked if he felt this case was a facial or an as applied challenge, and I felt the attorney stumbled a bit there as well. Justice Sotomayor brought up the fact employers are increasingly using Facebook and LinkedIn for job seekers, which obviously helped the attorney. Roberts opined whether a site could truly know if minors were using websites or not; a question was also raised whether merely banning registrants from dating sites would be unconstitutional as well. I thought I heard Sotomayor use the word “lurking” in regards to registered persons, which irked me, but she may have been only using the state description facetiously. The Packingham attorney reserved four minutes of his 30 minute argument for a rebuttal and took a seat.

The arguments from the state’s attorney were more lively, but more to the detriment of the state. Kagan began by commenting on President Trump’s propensity for “Tweeting” (which led to some chuckles in the audience) before adding the NC law prohibits registrants from interacting with Trump on Twitter or even reading his Tweets. One of the justices (Alito I think) opined whether registrants could be banned from the public square altogether. The state brought up presence restrictions; Breyer responded physical restrictions suffer the same problems this case posed. Roberts asked if anyone online even knew anything about the person they were communicating with online; the state claimed Facebook verifies identities (which is only somewhat true).

The crux of the state argument is that registered citizens “lurk” and “stalk victims” through social media, and the state relied on the “high recidivism” lie and the claim registrants have a “disability” making them “likely to reoffend” to justify the law. The state was relying on Smith v Doe once again as a basis for justification.This was one key point that bothered me, as the high recidivism claims were neither corrected by the court or challenged by anyone.

However, it seemed the Justices grasped the importance of social media in our modern society. Kagan pointed out the most popular social media websites were “embedded” in our culture, and that for the younger generation, social media has become the primary source of sharing information and news. Ginsburg questioned the logic of the law as it allowed registrants to use Snapchat but not Twitter; banning registrants from social media cut off registrants from a “large swath” of the population. (Ginsburg also noted that it seemed odd to single out Facebook and Twitter while allowing access to photo sharing and chat rooms, which she felt were more potentially dangerous than Tweeting.)

The state fumbled hard when stating a claim for legal precedent for this social media ban; the state returned to the prophylactic rule Kagan mentioned earlier. Kennedy responded that if that was the best the state could come up with, the state loses.

It seemed as the arguments continued, the justices grew more impatient with the repetitive argument of the state. Breyer likened the law to previous laws targeting suspected Communists. Sotomayor added the state’s argument heaps “layer upon layer of speculation,” noting the law applies even to teenagers more than four years apart engaging in consensual relations. Ginsburg even cracked a joke at the expense of the state’s argument that had the audience laughing loudly.

Perhaps the greatest fumble of the state’s attorney came when asked whether the NC social network ban applied to the NY Times website. The site does require you to create a profile for the purposes of commenting. The state claimed the law did not apply to the NY Times, but upon further prodding of Sotomayor, the state presented section B3 of the state law. Kagan found the state law vague, particularly the use of the phrase “such as,” which meant “for example.” Kennedy asked the state to define a profile– is a profile as simple as a name and picture? Ultimately, the state attorneys conceded he wasn’t really sure if the NY Times website is banned.

After the state attorney ended his poorly devised argument, the Packingham attorney gave a brief rebuttal, stating the law was overly broad and that the law was a criminal rather than civil statute. Kennedy asked what the main forms of communication were on the Internet in 2003, which I only assume was directed at whether or social media was that important in society. Alito had dryly commented earlier that some people feel they cannot live without Facebook and Twitter, which had caused a chuckle. I had wished that the Packingham attorney rebutted the recidivism claims, but he did not, and was left unchallenged as the argument came to a close.

Based on my personal observations, I felt as if a majority of the Eight Justices will rule on our side. Kagan, Sotomayor, Ginsburg, and Breyer were vocal and very critical of the state. Kennedy waffled as he is prone to do, but his “you lose” statement gave me hope he is number five. Even John “Price Club” Roberts seemingly questioned the law. Clarence Thomas was as quiet as ever. Alito seemed the most sympathetic to the state, so he is most likely to dissent. While most media accounts predict a 5-3 decision, I will go out on a limb by calling it 6-2, with Thomas and Alito the dissenters. In regards to the performance of the arguing attorneys, it reminded me of a a college football game where the dominant team (Packingham) played decent football but costly fumbles kept the game a bit closer than it should have been.

One of the key arguments I glossed over here is the discussion about “ample alternatives.” It wasn’t discussed quite so deeply in the arguments, though it was brought up in a couple of statements. If I had my chance to make a statement to the Justices, I would have stated that if the Internet is truly the Information Superhighway, NC wants us to drive down a dirt road. I wish I could have mentioned how the anti-registry movement has proliferated through the use of comment boards and online networking. I would have mentioned the increase of Facebook-only commenting among major media outlets. Most of all, I would have challenged the state on their bogus claims of “high recidivism.” There was a missed opportunity to challenge Smith v Doe and McKune v Lile, and I wanted to scream that it was a bold-faced lie.

However, winning Packingham is a critical step in challenging these laws. Within the same halls that opened Pandora’s box is the hope of someday stuffing the demons of bad legislation back into that box opened in Smith v. Doe.

–Derek W. Logue of OnceFallen.com

 

14 comments for “The Packingham vs. NC Oral Arguments

  1. Gerry
    March 2, 2017 at 4:48 pm

    “Alito had dryly commented earlier that some people feel they cannot live without Facebook and Twitter, which had caused a chuckle.”

    Good one! Not that long ago some people that felt that they could no longer live riding the back of the bus. Though it got them from A to B just the same. Or some people felt they could no longer live drinking out of certain drinking fountains. Though they hydrated them just the same. Would that have caused a chuckle?

    Thanks for the write-up!

  2. mike r
    March 2, 2017 at 10:40 pm

    well stated derek…I really can’t understand why these attorneys seem to be afraid of challenging the high recidivism lie but they seem to be..I was hoping after reading the briefs that they might pound home that issue in oral arguments and am extreemly disappointed that they didn’t…..just as will has said in the past without the high recidivism rates all the laws fall away as unjustified and useless regulations and rules..

  3. Lovecraft
    March 3, 2017 at 7:44 am

    IMO the best play from Goldberg was during the rebuttal. The state had said during their turn that snapchat was ok to use. Goldberg pointed out within the past week or 2 a registrant was arrested for using snapchat. I live in NC and I can tell you first hand that no one in LE has any idea what is and isnt covered. It is up to the individual agent to determine what is and isnt social media.

  4. Tim Lawver
    March 3, 2017 at 8:24 am

    Justice Thomas is not on an SOR but he may very well belong on one, so I’m not surprised he kept quiet. Anita Hill exposed his deviant ways in 1991. Thomas denied Hill’s complaint. Sounds all too familiar.

  5. Gini
    March 4, 2017 at 9:53 am

    Even though the bus ride was difficult and hard at times and the wait in line long and cold it was worth it all in the long run, I enjoyed seeing how the proceedings are handled in person.

  6. rpsabq
    March 10, 2017 at 6:50 pm

    Everyone send a dollar to your local group. just put in an envelope. we gotta get this done, ya’ll.. and Ginsburg is on our side and she’ll be out soon!

  7. March 11, 2017 at 5:55 am

    I can’t believe how many people in our movement are conservatives. If you are a REAL activist in this movement, you better pray that we survive four years of Trump without losing Ginsburg, Breyer, Sotomayor and Kagan, because it is the conservatives that are our greatest enemies in SCOTUS.

    • Kayt
      March 11, 2017 at 12:21 pm

      What marks an activist?

      • March 13, 2017 at 5:11 am

        The root word of ACTIVIST is ACTIVE, which means you are engaging in activities that are working towards the ultimate goal of abolishing the registry. If you write letters to the editor or letters to legislators, you are an activist. If you run a support site like SOSEN to help registrants, then you’re an activist. You are an activist even if your only contribution is donating to the cause, whoever it may be. I don’t think it is activism, however, to just be one to come to a site and do no more than complain about things without contributing any more than that.

        Consider what it takes to run an army. Obviously you have soldiers and field generals. But, you also have medics, supply runners, cooks, communications, and so forth. That being said, we’ve always had a shortage of front line infantry. That means folks willing to be a VISUAL PRESENCE in the movement. That includes protesters, people testifying before committees and doing media interviews. Part of the problem is the conservatives in our “movement” discourage much of this activity. There is one group who actually tells registered citizens not to speak publicly or make their statuses known. That’s bad because it is easier to pass bad legislation against those who are not seen! It is important for registered persons to meet with legislators, take their families with them, and let it be known that these laws affect REAL HUMAN BEINGS!

        THAT is ACTIVISM.

    • Alan Davis
      March 11, 2017 at 1:53 pm

      Sex offender laws are put forward not only by conservatives but also by progressives. All politicians seem to feel that they can use the “tough on sex offender” agenda to promote their standing. However, to imply that there are not nearly as many conservative registrants as there are progressive registrants and that the conservitave ones can’t be just as effective activists as the progressive ones is throwing away nearly half of our potential activists.

      Many of the Trump supporters are encouraged that he is keeping some of his campaign promises. How long has it been since anyone could say that about anyone they helped get elected. One of Trump’s major points was to see that SCOTUS remained balanced. If Hillary had won, the court would have instantly become a 5 to 3 balance with the additional vote still never being able to have any impact. Most conservative judges, tend to be more likely to decide based on the actual wording in our Constitution rather than “reading into it” their own political bias.

      My personal hope would be that Trump is not only allowed to fill the current open seat on SCOTUS with someone who considers the Constitution as the major measuring stick, but that he may be able to even replace one or two other progressive judges including Roberts, who was the one they thought was conservative but has ruled as a progressive most of the time. Remember it was back in 2003 that his mouth provided the words of “high and dangerous recidivism rates” for sex offenders.

  8. Gini
    March 12, 2017 at 6:11 pm

    Kayt, I believe the definition of an activist can vary from person to person and group to group, in my opinion an activist is someone that will stand up for what they believe in, even if they are in the minority. I would also describe an activist as someone that campaigns to bring about positive change to the world. Many people think that they can not be an activist because they may have restrictions placed upon them like travel, financial and other such difficulties, however everyone can help! Writing a letter, passing on news, perhaps attending a rally, sometimes even just a little moral support to another person can make amazing changes.

  9. William Hart
    March 19, 2017 at 5:27 pm

    I would like to remind Mr. Davis that the late Justice Scalia, routinely hailed as a “constitutionalist”, issued a dissenting opinion in the Troy Anthony Davis case stating that “innocence, by itself, was not a legal basis to overturn the conviction.”

  10. scsexoffenseregistryreform
    March 27, 2017 at 5:35 pm

    I would have thought Clarence Thomas would have spoke up since he faced false sexual allegations and knows how the system works. They should have got a more experience attorney to argue this landmark case.

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