Reply To: KY: Federal judge strikes internet restrictions, online identifiers


There’s still a hold-out on the Internet and Social Media issue. As I understand it, these rulings only apply to those offenders who are NOT subject to supervision by the courts or the state. Those of us subject to lifetime supervision at the hands of the state have very little to go on. Although the tide has turned SOME, there are too many divergent opinions from the courts regarding the rights of supervised sex offenders to have Internet access for recreational purposes. Here is what I’ve ferreted out thus far:
 Packingham v. North Carolina (United States Supreme Court, June 19, 2017) Overturned North Carolina statute which barred sex offenders from social media and attached an authoritative First Amendment Free Speech liberty interest to Internet access.

 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….”

 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 is 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].)

 Clement v. California Dept. of Corrections, 364 F.3d 1148 (9th Cir. 2004). This ruling attached a First Amendment free speech liberty interest to material generated from the Internet. The CA Dept. of Corrections would not allow inmates to receive any material in the mail which was generated from the Internet. The inmate sued and prevailed on First Amendment free speech grounds.

 United States v. Sofsky, 287 F.3d 122 (2d Cir. 2002) The Court struck down a state-imposed total Internet blackout. 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 blackout 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 blackout against Mr. Peterson outside of seeking employment. Court ruled condition was overly broad and bore no relationship to protecting the community from future crimes.

 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.

 Ashcroft v. Free Speech Coalition, 535 U.S. 234 (U.S. Supreme Court 2002) –The U.S. Supreme Court refused to include virtual (computer generated) child pornography in the category of unprotected free speech due to the fact that no actual child was involved in the production of the material. This case is cited to illustrate the strong First Amendment Free Speech liberty interests tied to Internet access.

 Janet Reno, Attorney General of the United States v. American Civil Liberties Union (521 U.S. 844, 1997) Communications Decency Act, 47 U.S.C. 223 was ruled unconstitutional. The U.S. Supreme Court ruled that indecent speech on the Internet is entitled to the same First Amendment protection as other indecent speech. The Court was concerned that the CDA, in denying minors access to indecent speech, effectively suppressed a large amount of information that adults had a constitutional right to receive. This case is cited to illustrate the First Amendment Free Speech liberty interests tethered to Internet access.

 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.