Youll hear argument first this morning in case 151194, packingham versus North Carolina. Mr. Goldberg. Mr. Chief justice, 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 2, 2. 5, reaches vast swaths of core First Amendment activity that is totally unrelated to the governments preventive purpose. Mr. Packingham was 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 corner. 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 please go ahead. Please go ahead. Is a criminal law, your honor that imposes punishment for protected First Amendment activity without any regard to individual culpability or lack of culpability. Could a state impose this restriction as a condition of parole . Your honor, i think they have much more authority to impose things as a condition of parole. And state dozen this all the time. They limit peoples First Amendment rights. I think that they if you had something that was as sweeping as this for life, for anybody who had committed a sex offense, i dont think they could do that. But Justice Ginsburg . The most fundamental right is taken away from exfundamentals by some states. Prohibit exfelons from voting. Some states and the federal government prohibits bearing arms. Those are Constitutional Rights. Right, your honor. Both of those rights are different from the First Amendment. Theyre equally fundamental but they are different. In the case of voting, North Carolina does not take away North Carolina draws the line at people who have completed their parole, their period of supervised release. But in richardson versus ramirez the court looked to the text and history and tradition and said in section 2 of the 14th amendment there was affirmative sanction for felon disenfranchisement. If you look at that same section which dealt with the people who were bailed in the civil war you didnt need to restore their First Amendment rights. With the Second Amendment, when somebodys convicted of a crime, they immediately lose their Second Amendment rights. They dont lose their First Amendment rights. In the Simon Schuster case, this court vindicated the rights of somebody who was a serial kill history wanted to write from prison, where he was serving a life sentence for murder about his experience. Its a little difficult you said look at the text in history. We dont have a lot of history here concerning access to websites and all the sort of things were dealing with here so i dont think thats a very useful guide. Agree, your honor. But i think when you look at when we talk about the history, the history is there isnt a tradition or a history of taking away peoples First Amendment rights. When the court said First Amendment rights are inalienable, it had meaning my point is though you dont have a lot of history of having such sites or access where they can provide a broad access to minors of the sort that is problematic with respect to this individual. Well, i dont disagree with you we know as with violent video games, as with any manner of new technologies, the court is confronted, there isnt a reconstruction era analog. But there is no history when you talk about all of the things that the state historically has restricted, theyve never said, you lose your right to publish a newspaper because youve been convicted suppose we try to translate this into terms that would be familiar at the time of the adoption of the First Amendment. So suppose the state enacted a law prohibiting 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. Obviously at the framing, the First Amendment didnt apply to the states. But the all right, suppose it was in the district of columbia. So your honor, a kindergarten first of all, i dont know that theres a First Amendment right to visit a kindergarten. Thats fundamental here. This law only applies in the places where everything that happens is a First Amendment activity. Whether its receiving information, speaking, associating, petitioning. When some suppose the law simply said that someone who was a sex offender could not communicate with a minor. On social media. Would you agree to that that would be constitution at . I think my first answer is it would be much less restrictive and that shows why this law is unconstitutional, right . Thats exactly what the prosecutor does it concern you sure. The safety of children . Im asking you, yes, of course its less restrictive. Would it be constitutional . No communication with a minor . So i think it probably would be, your honor. I think the difference here is if you take the test, the narrow tailoring test, which fundame fundamentally the court said in ward, a quantitative test what percentage of what you suppress implicates the interests . When youre talking about communicating with minors or viewing the pages of minors, that is going to the heartland of the protective interests that the stating asserting. But here everything that theyre suppressing, as weve said, its indifferent as to whether its core speech. Obviously petitioner was convicted for saying thank you jesus, god is good, about a parking ticket to an audience. But you think that even as narrowly tailored as Justice Ginsburgs example, so a crime for a convicted second offender or say someone who was convicted previously of committing a second offense using the internet from contacting on the internet a person who is known by that person to be a minor without the concept of the pare consent of the parents of the minor . That would be a violation of the First Amendment . No, i said that would be constitutional, your honor. Oh, i thought you im sorry if i wasnt clear about that. I would stale say there are narrow tailoring questions. Im not here to say that particular hypothetical law. One of the customoncerns of thi which i think youve handled by narrowing it to a unsubset of people this applies to everybody in the registry, applies essentially on a statistical basis on the theory that as a collective they have a higher rate of recidivism than people on average. I think this courts First Amendment cases say thats a very problematic assumption to just be and especially with a population like this that is so hetero genius and is constantly being evaluated on an individualized basis. Its not clear to me why you would take peoples First Amendment rights away for life if the theory what do you think your best argument is . Is the statute too overbroad . Does it fail scrutiny, whatever level we adopt . Whats the i think what do you think i know you say all of those things. Yes, all of the above, your honor. And this is not a case where the level of scrutiny is going to make a difference. Elizabeth browning, let me count the ways. Exactly, your honor. Suppose there were an app, a program, in which officers could monitor your video and your cyber equipment. And disclose if you are communicating with minors. Could that be a law that every convicted person has to consent to that app and to that surveillance . Well i think that goes to the question of, which you dont need to answer and i want to answer justice sote myers question as well, 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. And it is effective detection and deterrence. 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 First Amendment for who hit the home run . Im saying for the state, your honor. I think it does everything, its perfectly tailored in a certain sense, except the state has a sense what was 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 have no problem whatsoever i take it, mr. Goldberg, part of what the state is saying is it doesnt have the capacity to do that. It doesnt have the capacity to check message by message or click by click what a person is doing. And in the absence of that, that some kind of prophylactic remedy is needed. Thats not unheard of in First Amendment law. If you think of a base son berson, which is the 50 feet in the polling places, thats kind of a prophylactic rule. So why wouldnt the same be appropriate here . Well, your honor, 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, having specific contact with them, those are prophylactic rules too. The question is can you do it at the first step . And i think 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 . I think thats constitutional because all right. Instead of what most of the briefs do is interpret the statute as broadly as possible. This is a faciel challenge. What about interpreting it as narrowly as possible . As narrowly as possible seems to be a necessary condition. Is it 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 . Well, your honor, a couple of points. The first answer to the playground, we dont 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. I wanted to be i wanted to get your answer, and i think i have that. And then really interested in the in narrow possibility of interpreting it narrowly, as i said. On that basis, its facially constitutional although it could be applied unconstitutionally. Thats what i want your answer to. Your honor, this is a criminal case, it doesnt arise as a civil suit in district court. This is first and foremost an as applied challenge. Because the relief were seeking is to overturn the youre not attacking the statute, youre only attacking it applied to your client . In a criminal case, 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 okay, thats then were back to my question. So im treating it as an as applied challenge. I dont want to just repeat the question, i want to get your answer to the question. 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 wait, but dont you see all im reading is word one before information exchange. The word im reading is related information exchange. As so interpreted that clause too, which youre much more familiar with than i am, seems to be talking about dating sites or the lower age level equivalent. If thats thats what it says. Facilitates 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. Right. I think i can say that. Now,fy say that, is it constitutional . Thats what im trying to get your answer to. 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 they couldnt. Because of your case. Right, exactly. Involving posting about right. So that is my first and most important point, that mr. Packingham was not on a dating site. 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. Were going to have 40 other cases i dont think theyve ever applied it. I think the main focus dating sites tend to have age restrictions that apply only to adults. So i think its their position that those are excluded from this. Theyre i think the states position, and yon em they never as a construction because they want to go after these sites, the classic social networking sites. Yeah, the interpretation of justice breyer, the Language Justice breyer is referring to and other language in the 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 using constitutional avoidance, it could be narrowed to at least those . 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, how do we win this case, what is the biggest problem with this statute . And the biggest problem with the statute just to put it in context, it is important for purposes of an asapplied challenge. Because of what your client used was a social was facebook, right . Right. Okay. So even if it were limited to those, you would say right, our position, and for the very reason weve talked about, which is that this, just like the saw 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 inscrim negotiate counsel, 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. Make 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 . Well, i think the state says that it is. Because it meets the definition. I just want to get back to Justice Alitos question well, thats my point. Facebook. Many people, many businesses, are using it for commercial advertising. Right. And thats very true. And there was another defendant who was prosecuted alongside mr. Packingham, who was an i. T. Person, christian johnson, he lost his job because his employer said its impossible for you to do your job if you cant get on these sites. Even if you dont all of these question implicate what Justice Sotomayor asked earlier. Then 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 are the basic rules or the basic so the basic the choices you offer us to say why this is unconstitutional . Sure. So the most straightforward, basic doctrinal basis to say its not narrowly tailored and stop there, or overbroad which is the flip side. Sometimes overbroad is a confusing word because it has this Third Party Standing dimension