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August 17, 2017

"Do Criminal Defendants Have Web Rights?"

The title of this post is the headline of this new piece at The Crime Report authored by James Trusty.  The piece provides a review of the Supreme Court's First Amendment work in Packingham v. North Carolina and its possible impact.  Here are excerpts:

Court-imposed web restrictions applied to criminal defendants may be going the way of dial-up internet service. In June, the Supreme Court issued a unanimous ruling in Packingham v. North Carolina that invalidated a state law banning registered sex offenders from accessing websites that could facilitate direct communications with minors.

While the majority opinion and concurrence seems grounded in — and specific to — sex offender restrictions, the evolving communications technology that operates in cyberspace today suggests that the ruling will have an impact on attempts to restrict web access for all criminal defendants in state or federal courts....

Lester Packingham ... [was] convicted of violating a North Carolina statute that prohibits convicted sex offenders from using social-networking websites, such as Facebook and Twitter. The unanimous Supreme Court opinion, written by Justice Anthony Kennedy, reversed the conviction on First Amendment free speech grounds. According to Kennedy, the North Carolina statute was too broad, in that it effectively prevented sex offenders from accessing the “vast democratic forums of the Internet” that serve as principal sources of information on employment opportunities, current events, and opinions or ideas that have no connection to criminal plans or the potential victimization of children.

Justice Samuel Alito agreed, pointing out that the statute’s definition of social networking sites would in effect encompass even Amazon, the Washington Post, and WebMD — all of whom provide opportunities for visitors to connect with other users. In his concurrence, he noted that states were entitled to draft narrower, and constitutionally valid, restrictions because of their legitimate interest in thwarting recidivist sex offenders.

But it’s not at all clear that a state legislature can follow Justice Alito’s guidance and sufficiently narrow its sights on offender/child communication to the point where the law has its intended effect, while still passing constitutional muster.  There may undoubtedly be pedophiliac versions of Tinder or Match.com which could fit the definitions of sites where access can be restricted without harm to First Amendment protections. But today’s internet does not lend itself easily to such narrow definitions.  Even mainstream sites like The Washington Post or Amazon could be considered portals that might be compromised by criminal behavior.  Such sites encourage the kind of user engagement that, while they may not be fairly called a “chat room,” is close enough to a “bulletin board” to bring us right back into the perils of North Carolina’s now-invalidated law.

And what of the defendants facing internet restrictions for reasons other than molestation or child pornography violations?  There are numerous defendants who are bounced off the internet as a condition of probation or supervised release because the internet was an instrumentality for their crimes.  For instance, internet-based fraud, identity theft, or using pro-terrorism websites to construct weapons or murderous plans, are all offenses that have led judges to impose some form of web restriction on defendants.

Web restrictions for these defendants are now also in play in a post-Packingham world. The intention of the judges seeking to restrict web access in these cases is understandable.  They want to remove potential tools of victimization from the hands of convicted criminals.  But the Supreme Court’s recognition of the vast, evolving and multi-purpose nature of today’s internet has brought legitimate First Amendment considerations into almost every web-limiting decision.

We may soon see that the only web restrictions that are lawful and practically enforceable are ones stemming from the defendant volunteering to withdraw from the net — likely because of the perceived trade-off between more time in jail and the judge’s comfort level as to assurances that re-victimization by internet will not occur when the defendant is returned to the community.

In the meantime, Packingham may shape the battlefield when web-restricted defendants are alleged to have violated parole or probation by visiting websites. Judges facing considerably more ominous violations than Lester’s on-line celebration of beating a traffic ticket may find that website-messaging technology and powerful First Amendment concerns leave them with little recourse but to ban outright all attempts to restrict access.  To some, this may be an uncomfortably high price to pay for web freedom.

On a practical level, technology has largely out-paced the now-antiquated view that the Internet can be surgically sliced into “safe” websites and “unsafe” ones, and the unanimity of Packingham suggests that the Court did not struggle much with its rationale.  While the absence of web-restrictions would lead to the release of offenders to the community with an unavoidable dose of discomfort with their access to computers, it may also result in judges finding themselves increasingly satisfied with lengthy prison terms because of the lack of a satisfactory, less-restrictive condition of supervised release....

Perhaps the safer bet here is on technology — that some program, some application, or some web-alternative pops up in the future and revitalizes the possibility of judges restricting web access without violating First Amendment rights. 

August 17, 2017 at 12:52 PM | Permalink

Comments

All restrictions do not fit all circumstances!

Posted by: LC in Texas | Aug 18, 2017 1:18:48 PM

Yes.

Posted by: Joe | Aug 18, 2017 6:18:09 PM

I am a defense attorney who does a lot of work with sex offenders. I wonder if Packingham might prohibit states from requiring registration of social medial addresses like Facebook. Most registration statutes do require that information.

Posted by: philip mears | Aug 21, 2017 10:09:27 PM

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