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