Right on the heels of my post last week about a North Carolina Court of Appeals ruling holding that the state’s social media ban for sex offenders was unconstitutional, a judge right here in the idyllic town of Vernon, CT has apparently ordered a man to stay off the internet for the entire period of his 10 year probation.
Just, all of it. No emails, no Youtube, no Facebook, no Facebook, no Facebook, no Twitter, no Tumblr or Kickstarter or whatever the hell these kids are watching these days. Heck, no New York Times or CNN or Hartford Courant or WhiteHouse.Gov or SignThisEPetition.Com or whatever the web will become in 4 years’ time which is when he will get out of jail.
Lindsey would send messages to the people in the Philippines “soliciting children to engage in specific sex acts,” and would choose which children and which adults he preferred, and which acts he wanted them to perform, [prosecutor] Leaming said.
Okay, so probably not the strangest sexual fetish, but sure to make many people, myself included, pretty squeamish.
But, as Popehat just wrote, it’s easier to accept that everyone has First Amendment rights if you go in expecting not to like any of the participants.
Let’s go back to that North Carolina opinion to gather some pertinent First Amendment law regarding, you know, just banning someone from the internet:
The statute plainly involves defendant’s First Amendment rights as incorporated through the Fourteenth Amendment because it bans the freedom of speech and association via social media. “[A] statute regulating the time, place and manner of expressive activity is content-neutral in that it does not forbid communication of a specific idea.”
I suspect that the same would apply to the judge’s order, even thought not a legislative statute. Moving on:
[The statute] is content neutral because it restricts access to commercial social networking Web sites without any reference to the content or type of speech disseminated or posted thereon. See Turner Broad. Sys. v. FCC, 512 U.S. 622, 641-42 (1994). Content-neutral regulations are subject to intermediate scrutiny: they must be both “narrowly tailored to achieve a significant governmental interest” and “leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
I’m no First Amendment expert, but I find it hard to see how a blanket ban on accessing the entire internet can be said to be “narrowly-tailored” (that other part – significant governmental interest – I think is given).
Some have made the argument that perhaps his status as a probationer would distinguish the situation from those cited in the prior post. I think that might make it a closer question, but ultimately it depends on the kind of ban the judge imposed. Two articles on the sentence seem to imply that the ban was unconditional and for the entirety of the probationary period.
A brief survey of cases in other jurisdictions reveals that while bans on internet use while on probation have been upheld, they have been upheld only where it was conditional, allowing access to the internet with approval of the probation officer and if only for a short period of time. Consider U.S. v. Heckman in the Third Circuit:
We first upheld a conditional ban on Internet access in United States v. Crandon, 173 F.3d 122 (3d Cir.1999)… Crandon’s ban was both limited (to three years) and conditional (subject to exceptions approved by the Probation Office).
Four years later, we refused to uphold a more restrictive, five-year ban in United States v. Freeman, 316 F.3d 386 (3d Cir. 2003). There the defendant’s offense did not include the direct exploitation of a minor. Instead, it involved the distribution of child pornography by a convicted child molester. The District Court imposed a special condition that was both lengthier (five years rather than three years) and more restrictive (adding a ban on computer equipment in the defendant’s residence to a conditional Internet ban).
Applying their logic, the Circuit rejected an unconditional lifetime ban in Heckman. The closest the Second Circuit – which would be relevant in Connecticut – has comes seems to be U.S. v. Johnson, 446 F.2d 272 (2nd Cir. 2006).
In the case of an offender who had downloaded and disseminated child pornography through the Internet, an outright ban was held to be more restrictive than needed to serve the sentencing goals of rehabilitation and incapacitation because a combination of monitoring and unannounced inspections would exert the control of an Internet ban while allowing an offender access to the Internet for legitimate purposes. See United States v. Sofsky, 287 F.3d 122, 126-27 (2d Cir.2002); see also United States v. Cabot, 325 F.3d 384, 386 (2d Cir.2003) (vacating an Internet ban after the government conceded that it could not stand under Sofsky); United States v. Peterson, 248 F.3d 79, 82-84 (2d Cir.2001) (vacating a computer and Internet ban, reasoning that, inter alia, “t]here [was] no indication that Peterson’s past incest offense had any connection to computers or to the Internet.”).
As the Seventh Circuit observed in United States v. Holm, 326 F.3d 872, 878 (7th Cir.2003), courts in similar contexts have recognized the importance of considering whether a defendant made “outbound use of the Internet to initiate and facilitate victimization of children.” Compare United States v. Paul, 274 F.3d 155, 169 (5th Cir.2001) (upholding prohibition where the defendant had used the Internet to provide advice to others on how to find and obtain access to “young friends”), and United States v. Crandon, 173 F.3d 122, 127-28 (3rd Cir.1999) (upholding prohibition where the defendant had used the Internet to “develop an illegal sexual relationship with a young girl over a period of several months”), with United States v. Freeman, 316 F.3d 386, 391-92 (3rd Cir. 2003) (vacating prohibition where the defendant was convicted of receipt of child pornography, and noting that “the defendant in Crandon [by comparison] had used the Internet to contact young children and solicit inappropriate sexual contact with them. Such use of the Internet is harmful to the victims contacted and more difficult to trace than simply using the Internet to view pornographic web sites”), and Holm, 326 F.3d at 874, 879 (vacating prohibition on use of any computer with Internet capability by a defendant convicted of possession of child pornography). We therefore affirm the imposition of the absolute Internet ban as it has been crafted in this case.
Like the other circuits, it seems that there is no outright ban on such bans, but they are generally upheld more frequently when they are for a limited time period, with some internet access permissible and the offender isn’t someone who has had sexual intercourse with a minor he met over the internet.
Connecticut’s Supreme Court has never considered this issue, as far as I can tell. The closest they’ve come is State v. Stephens. In Stephens, they were asked to rule that a condition of probation banning the possession of “any sexually stimulating material deemed inappropriate by a probation officer”, which depending on the probation officer could be a picture of freckled elbows.
As is their habit, they declined to review the claim, stating repeatedly that they could only rule it unconstitutional if a First Amendment challenge were mounted, which it was not, for reasons that are unknown to me. So they have never had to confront the First Amendment implications of blanket internet bans.
Since a guilty plea by Mr. Lindsey waives all non-jurisdictional defects, I don’t think they’ll be asked to do so in this case, but what do you think? Is such a ban Constitutional? Should it be? Should there be any restrictions on internet use by sex offenders?
H/T: Gerard W.
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