WASHINGTON (CN) – Justice Elena Kagan invoked President Donald Trump’s ever-evolving Twitter account Monday as justification to strike down a North Carolina law that limits registered sex offenders from accessing social media.
"In fact, everybody uses Twitter," Kagan said. "All 50 governors, all 100 senators, every member of the House has a Twitter account. So this has become a crucially important channel of political communication.”
Robert Montgomery, the senior deputy attorney general for the North Carolina Department of Justice, tried to cast the law as extension of the strides that states have made for years to keep sex offenders away from schools, playgrounds, day cares and parks.
"In 2008, North Carolina decided to prohibit sex offenders from being at virtual places where children congregate online - specifically, commercial social networking websites,” Montgomery said.
Insisting that the law is limited, Montgomery noted that sex offenders remain free to exercise their speech rights by accessing news websites, blogs and podcasts.
The case at issue stems from a challenge by Lester Gerard Packingham, who was arrested for dating a 13-year-old when he was 21. Packingham denies knowing how old the girl was, but pleaded guilty to taking indecent liberties with a minor. The court suspended his sentence but forced him to register as a sex offender.
Packingham landed in hot water with state authorities again after he took to Facebook to celebrate the dismissal of a traffic ticket. "Man God is Good!” the post said. “How about I got so much favor they dismissed the ticket before court even started? No fine, no court costs, no nothing spent ... Praise be to GOD, WOW! Thank JESUS!"
A Durham police corporal discovered his post while searching for infractions of the state’s social-media restrictions on sex offenders, as codified at Section 202.5.
Packingham's attorney, David Goldberg, told the high court that the "sweeping" law forecloses some of the most important social channels in our society. On top of that, he said, the law is most likely to ensnare people doing nothing wrong, not repeat sex offenders.
Montgomery said the law is restricted to websites that allow a user to go to another user's profile page, and then link to other users they do not know.
But Kagan said she did not read the law as imposing that requirement, zeroing in on how the law defines commercial social-networking websites.
The criteria says such sites allow users to create a profile or webpage containing personal information, "such as" their name or nickname, photographs, and links to other personal web pages of their friends that others can access.
Another criterion takes aim at social-networking sites that allow users to communicate with each other, "such as" by message board, chat room, email or instant-messaging service.
"So you're reading the 'such as' as a requirement, but 'such as' is not a requirement," Kagan said. "'Such as' is just like here's an example, but you don't necessarily need this.”
A loud burst of laughter filled the courtroom when Kagan scoffed at Montgomery’s suggestion to read the regulation with an implied colon after the word contained, followed by the four requirements.
"Well, then you need an implied colon and an implied semicolon," Kagan said.
Kagan also noted that the law does not prohibit the use of what she perceives as the most dangerous websites, including those that have only chat rooms or photo-sharing.
"So you exempt any website that provides only a chat room or only photo sharing,” Kagan asked. “So why is that? Because if I would have said, like, where the most dangerous activity takes place, it's in chat rooms and via photo sharing."
Montgomery responded that those platforms do not provide as much opportunity to harvest information.
"Typically, there's not the transparent amount of information or the anonymity that comes with the social networking website in which you can click on a link and go find out information about someone that you don't know," he said.
Justice Anthony Kennedy, who could swing the vote against the law for the liberal wing of the court, noted the utility of social media platforms today.
"The sites that Justice Kagan has described and their utility and their extent of their coverage, are greater than the communication you could ever had, even in the paradigm of the public square," Kennedy said, sewing doubt about Montgomery's argument that viable alternatives to social media platforms exist.
Montgomery said the impetus behind keeping sex offenders off of sites like Facebook is their potential for information gathering.
"These offenders can go to these sites and can quietly lurk and find out information," he said. "And there are links. The crucial factor that the state believes that narrows the statute is that the site must have links to other users' profile pages.”
Kennedy was unimpressed by the one case Montgomery cited when pressed for an example of a precedent.
Montgomery cited Burson v. Freeman, a ruling that suppressed political speech by imposing a 100-foot campaign-free buffer zone at voting precincts.
Kennedy noted that outside that 100-foot buffer zone, people could have all the political speech they wanted.
"If you cite Burson,” Kennedy said, “I think you lose.”
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