Probation Limitations on Internet and Facebook Use Violate First Amendment — In re J.J.

[Post by Venkat]

In re J.J., Case No. D055603 (Cal. Ct. App. Oct. 15, 2010)

J.J. is a 15 year old who was found to have received a stolen motorcycle. He was adjudged a ward of the court and placed on probation. The conditions of his probation included the following:

[J.J.] shall not use a computer that contains any encryption, hacking, cracking, scanning, keystroke monitoring, security testing, steganography [explanatory link added for others who may have also thought that this was a typo], Trojan or virus software.

[J.J.] is prohibited from participating in chat rooms, using instant messaging such as ICQ, MySpace, Facebook, or other similar communication programs.

[J.J.] shall not have a MySpace page, a Facebook page, or any other similar page and shall delete any existing page. [J.J.] shall not use MySpace, Facebook, or any similar program.

[J.J.] is not to use a computer for any purpose other than school related assignments. [J.J.] is to be supervised when using a computer in the common area of [his] residence or in a school setting.

He challenged these conditions as being overly broad and vague.

The court acknowledges that juvenile courts have broader discretion in fashioning conditions of probation than courts do with adults, but nevertheless noted that probation conditions must comport with constitutional restrictions. The court notes also that restrictions on internet activity curtail First Amendment rights:

Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. . . . Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means.

[We know which side the court comes down on in the debate Malcolm Gladwell started over the efficacy of cyber-activism!]

With this in mind, the court concludes that the limitation on J.J.’s computer (and internet) use is overbroad because it “forecloses access to countless benign and protected uses, and is insufficiently narrowly tailored to serve government interests.” The ban:

renders modern life — in which, for example, the government strongly encourages taxpayers to file their returns electronically, where more and more commerce is conducted on-line, and where vast amounts of government information are communicated via website — exceptionally difficult.

The ban on the use of internet and social networking sites failed because it was unrelated to J.J.’s criminal history. There was no evidence that J.J.’s receipt of the stolen motorcycle was the result of (or related to) any online activity.

The court also modified the condition which restricted use of computers which contained any “encryption, hacking” or similar software because it was vague – J.J. could violate it unknowingly. The court adds a limitation that the violation must be “knowing” in order to constitute a violation.

Related:Banned from the Internet” (The National Law Journal; Oct. 11, 2010) (discussing other cases)