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June 17, 2010

Notable dicta in Quon case that might impact (now common?) sex offender restrictions

In addition to the Dilloncrack retroactivity ruling (basics here and here), the other criminal justice decision from the Supreme Court today came in City of Ontario v. Quon (available here).  Quon concerns various Fourth Amendment issues surrounding a state police department's review of transcripts of salacious text messages an officer sent and received on his department-issued pager. 

Though Quon will be of greatest interest to those involved in traditional debates over privacy and police-practices, the opinion for the Court by Justice Kennedy has this notable flourish that could have some broader impact:

Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.

Relatedly, in a rich and spot-on solo concurrence that takes a variety of swipes, Justice Scalia concludes by lamenting the legal challenge presented if and when the Court embraces a doctrine "that requires evaluating whether a given gadget is a necessary instrument for self-expression, even self-identification." 

So, what does this have to do with sentencing law and policy in general or sex offender restrictions in particular?  Well, it is not too much of a stretch to contend in these modern technological times that access to the internet (and maybe even access to a Facebook or Twitter account) is now "essential means or necessary instruments for self-expression, even self-identification."  But, as regular readers know, sex offenders these days often face release conditions that fully or  significantly restrict their access to the internet and/or social networking websites.  I suspect that this classic Justce Kennedy line from Quon might find its way into a few efforts in lower courts to attack limits placed on some offenders' use of modern means of digital communation.

June 17, 2010 at 01:31 PM | Permalink


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Many circuit court decisions have upheld the right to access the internet for RSOs, as well as holding that requiring RSOs to turn over account passwords violates the 1st Amendment, most commonly by saying that anonymous speech is essential to free speech.

Posted by: NickS | Jun 17, 2010 1:38:15 PM

Care when dealing with the privacy implications of developing technology is a bad idea. This is "spot-on"?

As to the self-expression aspects of these devices, this is patently obvious when examining real life happenings, particularly when examining the activity of teenagers these days. Yes, as with limits on phones (e.g., Katz), this will have implications for sex offenders and others. In fact, since phones already are protected as an important aspect of privacy, why is the mention of "cell phones" and messages notable at all?

The fact that even Thomas didn't join his solo concurrence leads me to question the 'spot-on' nature of the rest, but except to say that no matter what lower courts would find ways to cloud an area of law where the Court is clearly split on reasoning, I'll leave the rest to others.

Posted by: Joe | Jun 17, 2010 1:43:53 PM

There is no privacy, and sexuality is a basic human function.

These persecutions will seem silly in only 10 years as the social network generation takes over from the current squares. It is similar to saying someone cannot use the police station bathroom. Just not true.

Posted by: Supremacy Claus | Jun 17, 2010 5:20:35 PM

how true SC 50-100 years from now our descendents living in the country that replaces the former United States of America is going to be absulutely sure we were all CRAZY!

Posted by: rodsmith3510 | Jun 18, 2010 2:36:24 AM

Been looking... does anyone know of any 4th circuit cases involving these social networking restrictions for SO's?

Posted by: Huh? | Jun 18, 2010 9:54:50 PM

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