W.V. Supreme Court: Internet usage protected speech for convicted sexual offenders

By Kyla Asbury . . . The West Virginia Supreme Court of Appeals has ruled that completely restricting a person’s access to the internet as a condition of their parole from prison is a violation of the First Amendment.

The West Virginia Parole Board revoked Bobby Ross’s parole based, in part, on him violating a condition of parole prohibiting him from possessing or having contact with a computer or other device with internet access, according to the March 12 opinion.

“We are asked whether this condition of parole is constitutional under the First Amendment,” wrote Justice Menis Ketchum.

In 2017, the United States Supreme Court held in Packingham v. North Carolina that a state statute barring registered sex offenders from accessing social media networking websites was an overbroad restriction of the right to free speech in violation of the First Amendment.

“Like the statute in Packingham, Mr. Ross’s condition of parole ‘bars access to…sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge,’” the decision states.

Unlike the statute in Packingham, Ross’s condition of parole extends beyond social media and forbids him from visiting any website, receiving an email from an employer or medical professional, paying a bill online, using the internet to check the weather or using a smartphone.

“Because Mr. Ross’s condition of parole is broader than the statute struck down in Packingham, we find that it is an overbroad restriction of free speech in violation of the First Amendment,” Ketchum wrote.

Ross sexually assaulted an adult female in 1987 in her apartment and stole money from her purse. He was convicted and sentenced to prison for first-degree sexual assault, burglary and attempted aggravated robbery and remained in jail until May 2014.

Ross’s release on parole was subject to numerous conditions and, because he was registered as a sex offender, he was prohibited from possessing or having contact with any computer, electronic device, communication device or any device which is enabled with internet access.

Ross moved in with his girlfriend, M.W., who owned a computer and had internet access, but these were password protected and Ross did not know the password. There is no evidence that Ross ever used M.W.’s computer or logged on to the internet during his parole.

In December 2014, Ross’s parole officer learned that M.W. had a computer and Ross was arrested and returned to custody for violating the conditions of his parole, even though no forensic analysis of the computer was done to determine whether Ross had used the computer or had otherwise logged on to the internet during his parole.

The parole board reinstated Ross’s prison sentence, which he challenged. The circuit court vacated the board’s decision and reinstated Ross’s release on parole. The state then appealed the circuit court’s order to the Supreme Court.

Ross has remained in jail for more than three years since the revocation of his parole.

Read the remainder of the article at the West Virginia Record.

Help us reach more people by Sharing or Liking this post.

Avatar

Viewing 3 reply threads
  • Author
    Posts
    • #37292 Reply
      Avatar
      Tired

      I live in Florida. Was on probation for 4 years from 2008-2011. I had to wear an ankle monitor the whole time. I was NOT allowed to use a computer for Any reason, even though this was the only way I could try to find employment.
      Do you think there is any recourse at this time?

      • #37453 Reply
        Avatar
        WC_TN

        I have compiled a listing of court rulings favorable to sex offenders who are on state supervision and denied Internet access by the state. Here is what I’ve found thus far. When this newest court ruling from the W. VA Supreme Court is available for download as a pdf I will add it to my list. The caveat is that all of these rulings are convincing arguments; NOT AUTHORITATIVE. The one authoritative ruling is Packingham v. North Carolina. That is a U.S. Supreme Court Ruling that applies to offenders who have served their prison time and are not subject to continued state supervision. We need to get a case of that nature before the Supreme Court so that they can rule on whether or not the states that require lifetime community supervision for certain sex offenders can indefinitely nullify those offenders’ 1st Amendment rights by banishing them from the Internet altogether. At this point the issue has to be fought state by state.

         J.I. v. New Jersey State Parole Board (New Jersey Supreme Court, A-29 September Term 2015, #07644, decided March 21, 2017) “Arbitrarily imposed Internet restrictions that are not tethered to promoting public safety, reducing recidivism, or fostering an offender’s reintegration into society are inconsistent with the administrative regime governing CSL offenders. The complete denial of access to the Internet implicates a liberty interest….”

         United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005) Although Mr. Crume has a lengthy history of grievous sexual misconduct, the record is devoid of evidence that he has ever used his computer for anything beyond simply possessing child pornography. We are not convinced that a broad ban from such an important medium of communication, commerce, and information-gathering is necessary given the absence of evidence demonstrating more serious abuses of computers or the Internet. We are confident that the district court can impose a more narrowly-tailored restriction on Mr. Crume’s computer use through a prohibition on accessing certain categories of websites and Internet content and can sufficiently ensure his compliance with this condition through some combination of random searches and software that filters objectionable material. We affirm Mr. Crume’s conviction and his 262-month prison sentence. But we vacate special conditions of supervision two and four regarding Mr. Crume’s access to computers and the Internet and remand the case to the district court for further proceedings not inconsistent with this opinion.

         United States v. Sofsky, 287 F.3d 122 (2d Cir. 2002) The Court struck down a state-imposed total Internet ban. Sofsky was convicted of possessing more than 1,000 images of child pornography in the form of both still and moving pictures. Sofsky had also used the Internet to trade in child pornography. The Court opted for the state only imposing rules that prohibited Mr. Sofsky from accessing, viewing, or possessing pornography and refused to uphold a total Internet blackout because narrowly tailored, focused rules could be implemented and enforced. The 3rd Circuit Court of Appeals has refused to uphold a state-imposed Internet ban even in cases involving sex offenders convicted on child pornography charges because rules forbidding the possession and viewing of pornography can be enforced. Only in cases where the offender has a history of using the Internet as a direct instrument of physical harm or exhibits a willingness to use the Internet as a direct instrument of physical harm have total Internet blackouts without probation’s approval been upheld.

         United States v. Peterson, 248 F.3d 79 (2d Cir. 2001) Overturned a state-imposed Internet ban against Mr. Peterson outside of seeking employment. Court ruled condition was overly broad and bore no relationship to protecting the community from future crimes.

         In re Ramon Stevens (2d Civil No. B170328 Super. Ct. No. CR41322, Filed June 29, 2004) A convicted child molester serving a prison sentence is released on parole. A parole condition prohibits his use of computers and the Internet, although his crime did not involve a computer. We conclude this prohibition is unreasonable. Court opted more focused measures such as random, unannounced searches of his computer and the installation of monitoring software. Finally, BPT could verify Stevens’ Internet usage with a sting operation…surreptitiously inviting him to respond to government-placed Internet ads for pornography. Moreover, well-settled authority establishes that every parolee retains basic constitutional protection against arbitrary and oppressive official action. The government may enforce reasonable time, place, and manner regulations as long as the restrictions “are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication.” [Citations.]'” (Gonzales v. Superior Court (1986) 180 Cal.App.3d 1116, 1125.) “Because laws that attempt to regulate expression `pose a particular danger of abuse by the State,’ [citation], they are carefully scrutinized. [Citation.]” ( Berry v. City of Santa Barbara (1995) 40 Cal.App.4th 1075, 1083; see also Ashcroft v. American Civil Liberties Union, supra, __ U.S. __ [124 S.Ct. at p. 2791].)

         United States v. White, 244 F.3d 1199 (10th Cir. 2001) Condition of supervised release which forbade Mr. White from owning a computer or accessing the Internet was remanded for a more articulate restriction as original condition was simultaneously too narrow and too vague.

         United States v. Freeman, 316 F.3d 386 (3rd Cir. 2003) The Court struck down a prohibition against Freeman owning a computer or accessing the Internet as overly broad and stated more focused restrictions could be implemented and only if Freeman refused to follow those guidelines would it be appropriate to terminate all internet access.

         United States v. Albertson, 645 F.3d 191, 200 (3d Cir. 2011) Court overturned total Internet Ban on grounds restriction presented a greater deprivation of liberty than necessary to achieve the state’s objective of protecting the public and promoting the rehabilitation of the offender. Court also took notice of whether or not the Internet was used to commit the crime and whether or not the record contains evidence the offender has shown a willingness to use the Internet as a means of inflicting physical harm upon another (using the Internet to lure victims).

         United States v. Perazza-Mercado, 553 F.3d 65, 73 (1st Cir. 2009) Court overturned total Internet ban on grounds the restriction presented a greater deprivation of liberty than necessary to achieve the state’s goal of protecting the public and promoting the rehabilitation of the offender. The court also took note of the fact that Perazza-Mercado had not used the Internet to contact minors or view child pornography. (Refer back to Sofsky where the 3rd Circuit refused to uphold a total Internet prohibition where the underlying offense was viewing/possessing child pornography. That court would only uphold a total ban on Internet access if the offender used the Internet to solicit minors or use the Internet as an instrument of inflicting physical harm upon another or showed a willingness to do so.)

         United States v. Holm, 326 F.3d 872, 877-78 (7th Cir. 2003) Court overturned total Internet ban on grounds the restriction presented a greater deprivation of liberty than necessary to achieve the state’s objective of protecting the public and promoting the rehabilitation of the offender. The Court also acknowledged the technologies available to ensure the offender does not engage in an inappropriate or illegal manner. To wit: monitoring & filtering software

    • #37340 Reply
      Avatar
      Maestro

      Proof that any sexual offense is lumped into one basket. This guy’s offense was against another ADULT, but the fear mongers put it into their own heads that “sex offense” = “child endangerment” and that we’re all gonna use the internet to commit our crimes because…well…just hanging out at a city bus stop would be too easy I guess. *shrugs*
      Probation/parole expect us to not even be NEAR computers. Not even NEAR them.
      Can these wastes of tax payer money get any more ridiculous?

      • #37455 Reply
        Avatar
        WC_TN

        Maestro is right. The minute one says “sex offender” or “sexual predator” everyone reflexively thinks the reference is to someone who molests children. No one can deny that the sexual abuse of an innocent child elicits a visceral response since children are totally innocent and defenseless. However, child molesters are NOT the only “sex offenders” in the world. Thanks to out-of-control registry laws, even non-sexual crimes can land one on the registry in some states. Yes, in some states custodial interference can land individuals on the sex offender registry.

        Check this out:

        https://www.vice.com/en_us/article/wj4mpy/when-a-drug-conviction-lands-you-on-the-sex-offender-registry

        There are also “Romeo & Juliet” cases where a teen who is old enough to legally be classified as an adult has sex with his slightly under-aged girlfriend and ends up on the registry. In addition, you have the guy who gets drunk and takes a leak in the wrong spot (or maybe he just can’t wait…) and ends up on the registry. Even children being sexually curious have ended up on the registry. These monstrous laws are now devouring the very children they were designed to supposedly protect.

        Read this book by Human Rights Watch entitled “Raised on the Registry”.

        https://www.researchgate.net/publication/271519109_Raised_on_the_Registry_The_Irreparable_Harm_of_Placing_Children_on_Sex_Offender_Registries_in_the_United_States

        Two hormone-enraged teens send nudies of themselves to each other and get treated like predatory child pornographers.

        Maestro is right. They all get lumped together in most people’s minds and most don’t care to do enough critical thinking to separate out the “false positives” the registry triggers.

    • #37356 Reply
      Avatar
      D

      What would happen if all the so called “Sex Offenders” I notice that this given name has no past tense indication and it sounds as though we have registered people running around among us sexually offending other people. I wounder if this was the purpose for the choice of this word as well. What if all of the sudden all of the registered ex sex offenders stopped contributing to society completely and simply aloud the system to swallow them back up into the prisons to be wards of the state and burdens on the tax payers because it is not worth the effort to work hard and behave just to be treated as a pariah without the same rights as other citizens?

    • #37353 Reply
      Avatar
      Darrin

      The decision reasoned “… otherwise exploring the vast realms of human thought and knowledge.” Couldn’t this also apply to the right of travel? Surely “vast realms of human thought and knowledge” are found in other areas besides the internet, right? We are experiential beings and gain knowledge in a variety of ways, and the internet has no monopoly on this. I’ve gained TONS of knowledge through international travel and an appreciation for other cultures that could not be gained by merely reading. Seeing similarities between myself and people running down the streets of Hong Kong during a typhoon to escape danger (seeing we all have common survival instincts), the way Buddhist monks revere their monasteries and learning how not to disrespect them while visiting, or experiencing the frustration of trying to communicate with different languages… these are all part of knowledge and we should all have the opportunity to learn wherever knowledge is found. If we cannot be banned from knowledge found on the internet, can we then be bound from knowledge found elsewhere in the world?

Viewing 3 reply threads
Reply To: W.V. Supreme Court: Internet usage protected speech for convicted sexual offenders
We welcome a lively discussion with all view points provided that they stay on topic - keeping in mind...

  • *You must be 18 or older to comment.
  • *You must check the "I am not a robot" box and follow the recaptcha instructions.
  • *Your submission must be approved by a NARSOL moderator.
  • *Moderating decisions may be subjective.
  • *Comments arguing about political or religious preferences will be deleted.
  • *Excessively long replies will be rejected, without explanation.
  • *Be polite and courteous. This is a public forum.
  • *Do not post in ALL CAPS.
  • *Stay on topic.
  • *Do not post contact information for yourself or another person.
  • *Please enter a name that does not contain links to other websites.

  • *DO NOT POST LINKS TO OTHER WEBSITES
Your information:





<a href="" title="" rel="" target=""> <blockquote cite=""> <code> <pre class=""> <em> <strong> <del datetime="" cite=""> <ins datetime="" cite=""> <ul> <ol start=""> <li> <img src="" border="" alt="" height="" width="">