US Supreme Court set to kill Twitter, Facebook ban for sex offenders

Snapchat?

The problem with the law banning some sites and not others was highlighted with an almost surreal exchange between the justices and North Carolina's representative Robert Montgomery about whether Snapchat was included in the ban.

JUSTICE KAGAN: When you just said to Justice Ginsburg, well, maybe that would be unconstitutional if they included these things that are instead exempted, so you mean that there's a constitutional right to use Snapchat, but not to use Twitter?

MR MONTGOMERY: I'm not sure I understand. That – that Snapchat – Snapchat and Twitter seem to be included under this statute.

JUSTICE KAGAN: Well, I would have – I would have thought that Snapchat is – maybe I have it wrong. I'm not any expert on this. But isn't Snapchat photo sharing?

MR MONTGOMERY: I believe that is some of it. I don't...

JUSTICE KAGAN: Yeah. So that falls under the exemption; right? So you can use Snapchat, but you can't use Twitter?

MR MONTGOMERY: Well, Snapchat, as I understand it, you don't get the level of information that you get from something else. Because Twitter is – you can find out much more information than you could from however many seconds of video or pictures or whatever you get with Snapchat.

It's OK, we're not really sure what Snapchat is either.

What may prove to be the crucial exchange, however, came when Justice Breyer noted that the law was pre-emptively deciding what sex offenders would do.

"Here, you take a group of people who've done something wrong, been fully punished, and you're saying that they might say something to somebody which would be dangerous," he noted. "And you're right; it might be. On the other hand, your remedy from that is to cut off their speech."

The law should not be allowed to act against people unless there was a "clear and present danger" he argued. In response, Montgomery argued that legal precedent existed with a case (Burson v Freeman) where a 100-foot campaign-free buffer zone was set up around voting stations. Justice Kennedy jumped on that example, resulting in laughter in the court.

JUSTICE KENNEDY: I think that's – does not help you at – at all. Number one, it was applied to everyone. It was 100 yards. You could have all the political speech in the world outside the [zone] ... Do you have any better case than that? If you cite Burson, I think – I think you lose.

Since the case is largely about social media, unsurprisingly interest in it has been unusually high on Twitter: something that Packingham's representative, David Goldberg, pointed out was somewhat ironic.

"Mr Packingham is 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," he noted. "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."

But maybe not for much longer. ®