It was, to be blunt, sex day at the Supreme Court. The justices heard two cases, both involving men who had been punished for having consensual sex with a minor. In one case, a 21-year-old legal resident of the U.S. was ordered deported after he pleaded no contest to having sex with his 16-year-old girlfriend. That would not be a crime in 43 states or under federal law, but it was enough to get him deported for having committed an “aggravated felony” in California.
In the second case, a North Carolina man was convicted first for having sex with a minor, and arrested again seven years later for violating a state ban on social media use by sex offenders.
The U.S. Supreme Court appears ready to invalidate the North Carolina law he was arrested under, which makes it a crime for registered sex offenders to use Facebook, Twitter and other social media sites. At oral arguments Monday, at least six justices indicated serious doubts about the statute.
Lester Packingham, known as J.R. was a graphic design student at the Art Institute of Raleigh-Durham when he was arrested in 2002 for having sex with a 13-year-old girl. He received a suspended jail sentence and kept a clean record he was arrested again in 2010, this time because he signed up for Facebook and put a post on his wall.
“I said ‘Praise God, I didn’t receive a ticket, Praise Jesus, thank God,’ ” Packingham said outside the courthouse after oral arguments.
Inside the Supreme Court, Packingham’s lawyer David Goldberg argued that the social media ban punishes “vast swaths” of core First Amendment speech that is “totally unrelated to the government’s interest in preventing” child abuse.
Questioned by various justices, Goldberg conceded that a registered sex offender might be barred from communicating with a minor on social media or barred from some sites as a condition of parole. But this law, he contended, is a far broader denial of the fundamental right to free speech.
Justice Ruth Bader Ginsburg picked up that thread, noting that some states abridge other constitutional rights — prohibit ex-felons from voting or from having guns, for example.
Justice Sonia Sotomayor asked Goldberg whether the North Carolina social media ban is unconstitutional because it is too broad, because it isn’t precisely targeted enough, or “all of those things.” At that, Justice Anthony Kennedy puckishly quoted Elizabeth Barrett Browning’s famous line, “let me count the ways.”
Justice Samuel Alito was the only justice to voice skepticism about the importance of social media.
“I know there are people who think that life is not possible without Twitter and Facebook,” Alito said, but there are alternative means of communication.
Next up to the lectern was North Carolina Deputy Attorney General Robert Montgomery, who immediately faced a barrage of statistics from Justice Kagan.
The president, all 50 governors, all 100 senators, and every member of the U.S. House has a Twitter account, Kagan observed. Indeed, some 50 million Americans use these sites for religious purposes, the justice said.
“This has become a crucially important channel of political communication,” Kagan said — adding that under North Carolina’s social media ban “a person couldn’t go onto those sites and find out what these members of our government are thinking or saying or doing.”
Montgomery replied that there are alternatives to social media sites.
“Assuming we had a public square 100 years ago, could you say that this person couldn’t go into the public square?” Kennedy asked. These sites, he continued “have far greater coverage than the communication you could ever have, even in the paradigm public square.”
Montgomery replied that registered sex offenders have alternatives, like blogging. But that didn’t seem to be a good enough answer for much of the court.
Justice Stephen Breyer asked if you could have a statute that bars convicted swindlers from discussing money.
“Well, swindlers are not sex offenders,” replied Montgomery. “These are some of the worst criminals, who have abused children,” and there is a high recidivism rate, the lawyer said.
“Except that you exempt any website that provides a chat room or photo sharing,” Kagan said. In short, she said, the exemptions written into the law seem to be for the most “dangerous” activities.
“There are plenty of people who get information fine without social networking,” Montgomery said.
Kagan, the former dean of Harvard Law School, wasn’t buying that argument.
“How many people under 30 do you think don’t use these sites to get all their information? Under 35?” Kagan asked.
“The point is that these people are being cut off from a very large part of the marketplace of ideas,” Ginsburg added.
In the deportation case, the justices were almost as skeptical — noting, for instance, that the state law makes it a crime to have sex with a minor who is three years younger.
“That could mean it’s a crime for a college junior to have sex with a freshman,” Kagan said.
Decisions in both cases are expected by summer.