Probationer Restricted from Using “Gang Symbols” on “Social Media”–In re JT
JT, a minor, was convicted of burglary and more. Based on the probation report, the judge inferred his gang membership. His probation conditions included this restriction:
not knowingly post, display or transmit on social media or through his cell phone any symbols or information that [he] knows to be, or that the Probation Officer informs [him] to be, gang-related.
JT said the term “social media” was impermissibly vague. The court says it’s in the dictionary:
According to the Oxford English Dictionary, “social media” constitutes “websites and applications which enable users to create and share content or to participate in social networking.” Thus, a practical, acceptable, and common-sense definition of the term exists, which is what a probation condition needs to pass constitutional muster.
OK, but the dictionary definition incorporates the term “social networking,” which the court doesn’t define and doesn’t say if OED defines. So how clear is that definition actually? Furthermore, the court doesn’t address where “social media” stops and other types of “UGC services” begin. Instead, I think the OED definition essentially reaches all UGC services.
The court construes the dictionary definition to mean: “websites where users are able to share and generate content, and find and connect with other users of common interests.” Based on this construal, the court is expressly reaching all UGC services. That seemingly creates an overbreadth problem. The court responds that: “the condition’s purpose here—to deter minor from engaging in street gang activity—provides guidance to minor and clarifies what types of ‘social media’ the condition intends to target.” In other words, don’t display any gang allegiance or sympathy on any UGC service, and maybe you’ll stay out of jail. The court distinguishes Packingham because it dealt with social media usage bans, not the lesser restrictions in this case.
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JT’s four crimes in 6 months are troubling, and courts have substantial discretion to craft probation terms that protect the public. Even so, I’ve got problems with this opinion.
What is “Social Media”? The court’s invocation of one dictionary’s definition of “social media” is unsatisfactory. In doing so, it disregarded the fact that the California legislature has defined the term. I thoroughly covered this issue in my post on People v. Lopez (unfortunately not cited). I include the Lopez case in my casebook as evidence that the term “social media” is incoherent, at least from a legal standpoint. Or, if the court meant to restrict JT’s posting to all UGC services, then the order is overbroad. For example, if the order prevents JT from editing a gang-related Wikipedia page, the court has gone too far.
What Are “Gang Symbols”? The opinion doesn’t address this phrase, and I’m sure it’s been used in many thousands of probation conditions. Yet, in the context of social media, it made me wonder about emoji usage. As you can imagine, emojis have coded gang meanings (1, 2), but the identical emojis have completely legitimate usages. The probation condition imposes appropriate scienter requirements. Still, given the overlaps, I would feel like it’s too risky to use any emojis at all if I were subject to the condition. That’s another indicia of the condition’s likely overbreadth.
Case Citation: In re J.T., 2022 WL 2865856 (Cal. App. Ct. July 21, 2022)