Ethics Quote Of The Day: Supreme Court Justice Stephen Breyer


“The state has a reason? Yeah, it does. Does it limit free speech? Dramatically. Are there other, less restrictive ways of doing it? We’re not sure, but we think probably. . . . Okay. End of case, right?”

—-Supreme Court Justice Stephen Breyer, during oral argument in the case Packingham v. North Carolina, describing how state laws are traditionally seen by the Court as infringing on freedom of speech.

Lester Packingham was registered as a sex offender in 2002 after pleading guilty to statutory rape with a 13-year-old girl (he was 21). He served his time and probation, and then, in  2010, Packingham posted on Facebook to thank the Lord for a recently dismissed parking ticket, writing, “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? . . . Praise be to GOD, WOW! Thanks JESUS!”

Jesus, however, did not stop him from being prosecuted for that message under a 2008 North Carolina law that prohibits registered sex offenders from accessing social media, on the theory that it gives them access to minors.

Packingham appealed the resulting conviction, arguing that the law violated his First Amendment rights. The Supreme Court accepted the case, which could  determine whether access to social media sites like Facebook, Youtube, and others are a fundamental right.

In oral argument this week, observers got the distinct impression that this is where the Court is headed. At least five justices, a majority of the temporarily reduced court, suggested during argument that they would rule against North Carolina and for Packingham , whose lawyer says that more than 1,000 people have been prosecuted under the law.

Reading various reports of what was said, I am stunned by how out of touch everyone involved sounds. The Washington Post story describes Justice Kagan like she’s a web-head because she’s “only” 59.  “So whether it’s political community, whether it’s religious community, I mean, these sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights, haven’t they?” Kagan asked North Carolina Deputy Attorney General Robert C. Montgomery, who was defending the law.

Do we really have to ask that question today? The law was passed in 2008, which in technology and social media terms makes it archaic. Legislators can be forgiven for not understanding the central role of social media in American life nine years ago, but in 2017, when we have a President tweeting his every lucid thought (and many not so lucid), how can anyone defend the argument that blocking a citizen from social media isn’t an extreme government restriction on free speech? Laws related to technology should all have sunset provisions of a couple years (a couple months?) to ensure that they haven’t been rendered obsolete by the evolving societal use of and dependency on  the web, the internet, and new devices.Breyer’s quote is also encouraging in ways that go beyond North Carolina’s incompetent and unethical  law.

Somehow progressives, with the Democratic Party being pulled along into the dark, have come to favor speech restrictions. Bernie Sanders flogged the theme during his campaign, framing the SCOTUS ruling in Citizens United, which struck down Congress’s attempt to restrict political advocacy by organizations based on content, as a threat to democracy, and Hillary Clinton actually endorsed a Constitutional amendment to make the First Amendment weaker. During the campaign, Democrats seemed confident that the liberals on the Supreme Court, like Breyer and Kagan, shared their willingness to stifle free speech “for the greater good.”

I think they are wrong.

Thanks, Jesus!


Sources: Washington Post 1, 2; Wired

31 thoughts on “Ethics Quote Of The Day: Supreme Court Justice Stephen Breyer

  1. “So whether it’s political community, whether it’s religious community, I mean, these sites have become embedded in our culture as ways to communicate and ways to exercise our constitutional rights, haven’t they?” Kagan asked North Carolina Deputy Attorney General Robert C. Montgomery, who was defending the law.

    Do we really have to ask that question today?

    We’re talking about the place where they still put quill pens on the table in case anyone needs to scribble some notes, so yeah, probably had to ask the question.

    • I went to court to fight the good fight against the evils of profit driven traffic enforcement about a month ago, it was a harrowing fight, but I emerged unscathed and victorious.

      But you probably don’t care about that, I just mention it because I had cause to stand in front of a Justice of the Peace. “Your honour”, I started, “Is that the right title? I’ve never done this before; ‘Your honour?” She looked at me, and grinned as she said, “Your Worship.”

      Well for the rest of the interaction, I was “Your Worshiping” away, if she wanted to be called an attach helicopter, I would have complimented her on her landing gear, but I was struck at just how archaic the whole process was. Here I am: standing in a room almost completely constructed with hardwood, in front of a JP literally wearing a robe with a frilly floof on her chest, who is being handed papers by a person whose literal job title is “page”, and who, perhaps ironically, notes that her honorific is “Your Worship”.

      It was like taking a day trip on the TARDIS.

      • SCOTUS puts literal quill pens on the tables. They started doing it in the 1790 when… you know, practical, and never stopped doing it. Lawyers who get to argue there keep them as souvenirs/status symbols.

  2. A frequent source of frustration for me is seeing lawmakers legislate on technological subjects they have no knowledge of, often ignoring the consensus (consensuses? consensi?) of experts in the field. While this form has its nadir in the infamous “series of tubes” meme (for those keeping record at home, the Senator who first said it is now in jail), you see it in all manner of things related not only to social media, but to cybersecurity, internet access, and market regulation. When it comes to technology, our legislature favors heavy, ham-fisted measures that rarely solve the problem and often do more harm than good, because they don’t understand how integral computers and the internet are to modern life.

    It’s not just our freedom of speech at risk when lawmakers are uninformed – it’s the free market as well, with things like net neutrality (the idea that ISPs should not be able to throttle competing services and sites) and fair use provisions under attack. I don’t expect our geriatric representatives to understand technology themselves, but they have an ethical duty to hire people that do.

  3. Maybe if admitted child rapist Lester Packingham were limited to the spoken and written (on paper) word and his access to electronic communication of all forms were limited to email, adults with his proclivity would find it more difficult (albeit not impossible) to groom children to their wishes. How is this not rationally related to a legitimate State purpose? Why should he not suffer lasting and significant consequences of his actions? If you think that sex between a young man (you state his age as if it makes it more OK that he was 21 and not 51) and a child is no big deal, that is part of the problem.

    Seriously, you claim that it is “heavy” and “ham fisted” to make a grown man stay off of Face Book? Why do you care about Lester’s freedom of speech? The old maxim nowhere contains ” . . . first they came for the pedophiles . . . ” Keeping people like this off social media does not preclude email, that is not social media. A prospective employer should have no idea when Lester uses an email account rather than Face Book, or even LinkedIn. They would just think he has a life and actually interacts with the physical world.

    • Why do you care about Lester’s freedom of speech?

      This is an alarming question, blzp. The whole point of rights is that we care about preserving them even for the worst of us.

      I’m not sure if I’m fully convinced that this restriction of his rights is unjustified, but the question should at least be taken seriously.

    • Yes, it IS ham-fisted and heavy handed, and I care about his freedom of speech because every single human being alive deserves freedom of speech.

      To say that Lester could use social media to find further victims is technically true but based more in fearmongering than reason. The government must have a more compelling reason to suppress rights than ‘this person is scary’.

    • We do take away the rights of convicted felons for life. The biggest is they all lose their second amendment rights, regardless of the nature of their crime. Neither Lester from this case nor Martha Stewart are particular risks of of picking up a gun and going on a crime spree, yet mere possession of a gun is now a new, seriously punished felony. Fourth amendment rights are also often reduced for some time after release, in many cases for a considerable time.

      In this case there is another factor. We have a constitutional right against punishment for ex post facto crimes. Lester the molester did his crime in 2002. The state tried to apply a 2008 law to him. They restricted him in a way that did not apply at his sentencing. No one has that authority.

      What you propose is possible, but only if it is explicitly part of the punishment in the relevant statute. Then they key part is that it only applies to crimes committed after the law is in effect.

  4. This is a subject I have been cogitating on for a number of years…ever since I found out that a dial-up data line was required by law to carry data at a minimum rate of 14Kbps. For the uninitiated, that’s 14,000 bits of information per second. I found this out on the same day that AT&T installed a 30 MILLION bytes per second DSL line in my home.

  5. -Laws related to technology should all have sunset provisions of a couple years (a couple months?)-
    Some years ago after clearing some bookshelves for a book drive, I arrived at the collection point and watched as all of my non-fiction/technical books older than 2 years were cheerfully tossed into a recycling bin. Apparently the value of “FORTRAN 77 Tutorial” had declined to zero.
    There is considerable confusion in the intellectual property/rights/licensing areas as technology renders old laws and rules obsolete, or at least unenforceable, (i.e. the obsolete-the-day-it-passed Digital Millennium Copyright Act, now 20 years old). It doesn’t surprise me that the Supreme Court is now struggling to define rights-to-technology questions.

  6. One day I’ll read a quote from Breyer that isn’t just a series of rhetorical questions that he proceeds to answer, and only then meanders around to the point (or not).

    Since Scalia’s passing, he’s one of the more entertaining justices during oral arguments and I originally assumed it was just a style he acquired as a professor and kept going when speaking from the bench, but it’s perpetuated his writing as well. His first book, Active Liberty, is almost unreadable.

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