First Amendment Doesn’t Prevent Probationer Condition Restricting the Display of Illegal Activity on Social Media–In re Jawan S.

July 4, 2018 · by Eric Goldman · in Content Regulation

17 year old Jawan S. was convicted of aggravated unlawful use of a weapon and unlawful possession of a firearm. The court sentenced him to 2 years probation. Among other probation conditions, the court said no “illegal gang, guns & drug activity *** shall be displayed on his social media.” The court explained that probationer should “not post anything that is obviously illegal on his websites or on any social media.” The trial court expanded this thought:

Clear your social media of gangs, guns, and drugs. Stay away from gangs, guns, and drugs. What I mean by clear your social media is make sure you’re not even pointing your finger at the camera. I want nothing that looks like a gun. You are too young to smoke cigarettes. I want nothing that looks like you’re smoking anything. I don’t know if it’s a cigarette. I don’t know if it’s a blunt. Neither of those are showing up on your social media anywhere

On appeal, Jawan challenged this restriction on First Amendment grounds. The appeals court affirms.

Everyone agrees the probation condition was a content-based restriction, but it needs to be evaluated in the context of probation, where “the need to supervise a probationer, foster his rehabilitation, and protect the public permits a court to impose restrictions on his constitutionally protected freedoms that would not be reasonable to impose on the public at large.” This bends the normal strict scrutiny to a slightly lower but unnamed level of scrutiny.

The court doesn’t see the restriction as a prior restraint:

Probationers are not publishers; their speech cannot blithely be equated to the constitutional role of a free press in a democratic society. Of course, probationers do not lose their first-amendment rights entirely upon conviction or adjudication, but they can be censored more liberally than, say, a newspaper protecting the public’s interest in open and transparent judicial proceedings, provided that the censorship reasonably relates to the rehabilitative goals of the probation.

Er, this is a pretty old-school view. We are all publishers now, and each and every one of us has the capacity to contribute to the social discourse as if we had the infrastructure and gravitas of the most respected journalists. While odds are that Jawan’s posts related to illegal gang/gun/drug activity wouldn’t have this effect, we should never denigrate anyone’s capacity to be a “publisher” in the era of social media.

In this regard, the court puts a lot of weight on the restriction’s requirement that the depicted material is “illegal”:

An order that prohibits respondent from displaying illegal gang activity on his social media does not thereby prohibit him from posting a photo of himself with a relative, classmate, coworker, or anyone else who happens to be in a gang—as long as the photo does not depict any illegal gang activity. And that is true whether or not respondent knows that someone else in the photo is a gang member. What matters is what is happening in the photo, not who else appears in it, or how much respondent knows about that person.

The court thinks it’s OK that the probation restriction applies to past posts, not just future ones:

respondent’s continued public association with illegal activity—online or otherwise—poses a clear threat to his prospects for rehabilitation and a successful, productive life. Among other things, a lingering “criminal, digital footprint” may jeopardize his stated ambitions to attend college and pursue a corporate position with his current employer in the restaurant industry. The juvenile court was acting reasonably, and in respondent’s best interests, when it required him to clear his social media of any posts that could stand in the way of the positive ambitions that the court was trying to nurture.

I’m sympathetic to this view, and I might give the same advice if I were Jawan’s parent or friend. In contrast, I’m less thrilled about a court-ordered sanitizing of a minor’s social media account.

The court takes a broad view of social media restrictions for probationers, especially for minors:

Social-media restrictions are not, in general, invalid, or even presumptively invalid. Among other reasons, they are indispensible, in today’s world, to the goal of rehabilitating a minor. There can be no dispute that social media is a ubiquitous method of communication and interaction among adolescents like respondent. Thus, “[i]f the juvenile court has any hope of steering [an adolescent] toward a new direction and productive life,” given the central importance social media has assumed, “it would be absurd to target only real-world behavior and ignore online activity.”…

it does not strike us as unreasonable in the least to want to keep respondent as far away from these topics as possible. He is not an ordinary citizen. He is a delinquent minor who got a pass on juvenile detention in exchange for probation with restrictions. And he either is, or may well be on the brink of becoming, ensnared in gang and gun violence. This minimal curtailment of his first-amendment rights is reasonably related to his rehabilitative needs, and well within the constitutional limits of the juvenile court’s authority.

Case citation: In re Jawan S., 2018 IL App (1st) 172955 (Ill. Ct. App. June 29, 2018)

First Amendment Doesn’t Prevent Probationer Condition Restricting the Display of Illegal Activity on Social Media–In re Jawan S.

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