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[Music]
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welcome to scotus cast a project of the
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Federalist Society for Law and public
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policy studies our contributors join us
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from around the country to bring you
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expert commentary on US Supreme Court
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cases as they are argued and decisions
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are
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issued the Federalist Society takes no
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position on particular legal or public
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policy issues all expressions of opinion
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are those of the speaker
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thank you for joining us for this
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postdecision episode of scotus cast
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social media and sex offenders Edition
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I'm your host Christopher gofus on June
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19th 2017 the Supreme Court decided
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packingham V North Carolina Lester
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packingham was convicted in 2002 of
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taking indecent liberties with a minor
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in violation of North Carolina law and
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sentenced to prison time followed by
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supervised relief
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in 2010 he was arrested after
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authorities came across a post on his
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Facebook profile which he had set up
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using an alias in which he thanked God
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for having a parking ticket dismissed
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packingham was charged with and
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convicted of violating a North Carolina
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law that restricted the access of
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convicted sex offenders to social
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networking
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websites packingham challenged his
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conviction on First Amendment grounds
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arguing that the North Carolina statute
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unlawfully restricted his freedom of
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speech and Association
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but the Supreme Court of North Carolina
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ultimately rejected his claim the
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website access restriction the court
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concluded was a Content neutral conduct
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based regulation that only incidentally
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burdened packingham speech was narrowly
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tailored to serve a substantial
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governmental interest and left open
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ample alternative channels of
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communication by a vote of 8 to zero the
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US Supreme Court reversed the Judgment
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of the Supreme Court of North Carolina
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and remanded the case in an opinion by
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Justice Kennedy the Court held that the
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North Carolina statute which makes it a
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felony for a registered sex offender to
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access a commercial social networking
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website where the sex offender knows
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that the site permits minor children to
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become members or to create or maintain
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personal web pages impermissibly
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restricts lawful speech in violation of
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the First Amendment Justice Kennedy's
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majority opinion was joined by justices
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Ginsburg Brier Soto myor and Kagan
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Justice Alo filed an opinion concurring
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in the Judgment in which the Chief
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Justice and Justice Thomas joined
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Justice Gorsuch took no part in the
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consideration or decision of the case
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and now to discuss the case we have Ilia
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Shapiro who a senior fellow in
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constitutional studies at the KO
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[Music]
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Institute it turned out to be a rather
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straightforward case also unanimous uh 8
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to nothing although the majority opinion
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by Kennedy joined by the more liberal
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justices and then a con currence by
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Alito joined by the chief and Justice
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Thomas I'll go into that in in a moment
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not really uh differing on rationale but
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differing on what Alo calls a
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undisciplined dicta he kind of false
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Kennedy's flowery Pros I suppose um this
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case involves the First Amendment rights
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of sex offenders uh it seemed like Mr
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beckingham was going to win but unclear
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exactly how and what the rule would be
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that sort of thing and uh you know you
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could appreciate why someone could be
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skeptical because after all sex
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offenders are the most marginalized
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group in society ahead only of of
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cannibals I suppose so it has to be the
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rare case where the Supreme Court rules
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unanimously in their favor uh and this
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is not a situation where some State
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decreed that anyone accused of a sex
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crime be chemically castrated without
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trial or any other kind of Eighth
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Amendment or due process claim instead
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here Lester packingham a man who served
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his time and was released subject to the
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normal set of registration and living
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restrictions was sent back to prison
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because he accessed Facebook um so again
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uh all eight justices uh held that this
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violated the First Amendment so diving
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into the bizarre facts of the case uh
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packingham had served time for quote
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Taking Liberties with a minor when he
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was 21 and she was 13 unrelated to that
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he beat a parking ticket and then
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celebrated by proclaiming on his
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Facebook page God is good praise be to
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God wow thanks Jesus so no no religious
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free exercise claim on this one purely
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purely a speech one but nevertheless for
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this grave offense Against Humanity he
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was returned to the big house uh under a
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North Carolina statute that bans such
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people from accessing a wide variety of
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websites and the law was clearly meant
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to prevent Communications between sex
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offenders and miners but it sweeps much
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more broadly than any other such law in
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the country here's how it it reads uh
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North Carolina law makes it a felony for
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registered sex offenders quote to access
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a commercial social networking website
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where the sex offender knows that the
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site permits minor children to become
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members or to create or maintain
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personal web pages um and the Supreme
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Court found that this uh law was not
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narrowly tailored to serve a significant
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governmental interest translating from
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the legal ease this means that the state
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legislature slapped down a broad law
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that didn't closely track the social
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problem that it was supposed to Target
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as the court explained and it cited uh
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my brief uh KO joined with the ACLU on
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an amicus brief here the law as I just
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read to you could be used to Bar access
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not only to things like Facebook and
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Twitter and Linkedin what have you but
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to any site where someone creates a
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profile and interacts with people and
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that includes Amazon YouTube WebMD that
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WebMD seems to be a popular example both
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in the majority uh and in the
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concurrence although I myself I I admit
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have not ever used it or even the
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Washington Post or New York Times I mean
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think about it to log in to one of these
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sites you set up a type of profile I
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mean it's not a detailed sort of profile
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like in Facebook but you do that and
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then you exchange comments it fits under
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the rubric of that law uh but even
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restrict on social media alone would be
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troubling the uh the Court held in in
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Kennedy's majority opinion if uh they
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weren't further tailored Kennedy's
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opinion is really an encomium to the
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importance of web surfing quote by
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prohibiting sex offenders from using
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those websites North Carolina with one
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broad stroke bars access to what for
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many are the principal sources for
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knowing current events checking ads for
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employment speaking and listening in the
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modern Public Square and otherwise
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exploring ing the vast Realms of human
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thought and knowledge so I guess I guess
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this is a a practice tip the next time
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your spouse tells you that you're
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spending too much time on Facebook or
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Twitter uh you can reply that you're
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simply enriching yourself with the
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wealth of human knowledge citing
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Kennedy's opinion in in packingham and
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there are other problems with the
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statute that the court sort of notes in
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passing like it's it's vagueness people
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don't even know what they can or can't
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do that are subject to this the police
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themselves uh AR aren't exactly sure and
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the statute fails constitutional
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scrutiny because it criminalizes speech
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based on the identity of the speaker as
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Kennedy put it quote even convicted
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criminals and in some instances
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especially convicted criminals might
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receive legitimate benefits from these
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means for access to the world of ideas
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in particular if they seek to reform and
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to pursue lawful and rewarding lives and
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indeed the very purpose of the first
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amendment is to protect unpopular speech
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by disfavored minorities uh singling out
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this speech for prosecution without any
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allegation that it relates to conduct or
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even motive has now earned the tarhill
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state a big dislike uh from the Supreme
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Court uh and just uh a moment on the Alo
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concurrence uh again as I said he just
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quibbles that Kennedy has this uh
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encomium as I've called it to Facebook
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and the wonders of the internet age and
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so forth and he wants to make clear that
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this doesn't stop States from passing
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much more narrowly tailored laws quote
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uh here's from from alito's concurrence
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the court is unable to resist musings
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that seem to equate the entirety of the
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internet with public streets and parks
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and this language is bound to be
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interpreted by some to mean that the
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states are largely powerless to restrict
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even the most dangerous sexual predators
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from visiting any internet sites
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including for example teenage dating
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sites and sites designed to permit
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minors to discuss personal problems with
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their peers I mean I I think that's uh
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fing a bit too much uh of what Kennedy
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does but uh in any event um I think the
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court is clear uh even though the
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justices are generally very circumspect
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in terms of making sweeping
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pronouncements uh about the intersection
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of technology and constitutional law
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because these things tend to be a moving
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Target and who knows what the shape of
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social media or Communications or what
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have you might be in five or 10 years uh
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but still it seems pretty clear the the
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narrowly tailoring the narrow tailoring
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Point uh is hammered home a state
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certainly can uh and indeed every other
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state does uh restrict Communications uh
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between uh release sex offenders and
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miners without this kind of blanket ban
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on uh accessing uh most internet sites
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or at least most that that have any
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element of uh interactivity
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[Music]
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thank you for listening to this episode
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