People v. Morger , 2019 IL 123643 ( 2019 )

2019 IL 123643IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 123643)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
CONRAD ALLEN MORGER, Appellant.
Opinion filed November 21, 2019.
JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Justices Thomas, Kilbride, Garman, Theis, and Neville concurred in the
judgment and opinion.
Chief Justice Burke took no part in the decision.
OPINION
¶1 In this appeal, the defendant, Conrad Morger, challenges, as overbroad and
facially unconstitutional, the probationary condition set forth in section 5-6-
3(a)(8.9) of the Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5-
6-3(a)(8.9) (West 2016)). Defendant submits that section’s “complete ban on
accessing ‘social networking websites’ as a condition of probation is unreasonable
and unconstitutional under the First Amendment.” The appellate court rejected that
argument. 2018 IL App (4th) 170285. We allowed the defendant’s petition for leave
to appeal (Ill. S. Ct. R. 315 (eff. July 1, 2013)) and now reverse, in part, the
judgment of the appellate court.
¶2 STATUTES PERTINENT TO DEFENDANT’S
SEX OFFENDER PROBATION
¶3 Multiple statutory conditions of probation were imposed in this case, but we
consider four subsections of section 5-6-3 of the Code of Corrections (730 ILCS
5/5-6-3 (West 2016)) of particular significance in analyzing the issue presented for
our consideration: id. § 5-6-3(a)(8.7) (mandatory for a child sex offender), id. § 5-
6-3(a)(8.9) (mandatory if convicted of a sex offense as defined in the Sex Offender
Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2016))), 730 ILCS 5/5-6-
3(a)(11) (West 2016) (mandatory if convicted of a sex offense as defined in
SORA), and id. § 5-6-3(b)(18) (discretionary if convicted of a sex offense as
defined in SORA). The pertinent conditions provide:
“(a) The conditions of probation and of conditional discharge shall be that
the person:
***
(8.7) if convicted for an offense *** that would qualify the accused as a
child sex offender ***, refrain from communicating with or contacting, by
means of the Internet, a person who is not related to the accused and whom
the accused reasonably believes to be under 18 years of age; ***[1]
***
(8.9) if convicted of a sex offense as defined in [SORA] committed on
or after January 1, 2010 (the effective date of Public Act 96-262), refrain
1
Another condition of probation imposed in this case prohibited this defendant from having
contact of any kind with the victim, his sister.
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from accessing or using a social networking website as defined in Section
17-0.5 of the Criminal Code of 2012;
***
(11) if convicted of a sex offense as defined in Section 2 of [SORA] ***
may not knowingly use any computer scrub software on any computer that
the sex offender uses; ***
***
(b) The Court may in addition to other reasonable conditions relating to the
nature of the offense or the rehabilitation of the defendant as determined for
each defendant in the proper discretion of the Court require that the person:
***
(18) if convicted for an offense committed on or after June 1, 2009 (the
effective date of Public Act 95-983) that would qualify as a sex offense as
defined in [SORA]:
(i) not access or use a computer or any other device with Internet
capability without the prior written approval of the offender’s probation
officer, except in connection with the offender’s employment or search
for employment with the prior approval of the offender’s probation
officer;
(ii) submit to periodic unannounced examinations of the offender’s
computer or any other device with Internet capability by the offender’s
probation officer, a law enforcement officer, or assigned computer or
information technology specialist, including the retrieval and copying
of all data from the computer or device and any internal or external
peripherals and removal of such information, equipment, or device to
conduct a more thorough inspection;
(iii) submit to the installation on the offender’s computer or device
with Internet capability, at the subject’s expense, of one or more
hardware or software systems to monitor the Internet use; and
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(iv) submit to any other appropriate restrictions concerning the
offender’s use of or access to a computer or any other device with
Internet capability imposed by the offender’s probation officer[.]” Id.
§ 5-6-3(a)(8.7), (a)(8.9), (a)(11), (b)(18).
The definition of a “social networking website” appears at section 17-0.5 of the
Criminal Code of 2012 (720 ILCS 5/17-0.5 (West 2016)):
“ ‘Social networking website’ means an Internet website containing profile
web pages of the members of the website that include the names or nicknames
of such members, photographs placed on the profile web pages by such
members, or any other personal or personally identifying information about
such members and links to other profile web pages on social networking
websites of friends or associates of such members that can be accessed by other
members or visitors to the website. A social networking website provides
members of or visitors to such website the ability to leave messages or
comments on the profile web page that are visible to all or some visitors to the
profile web page and may also include a form of electronic mail for members
of the social networking website.”
¶4 BACKGROUND
¶5 The State’s uncontested evidence, resulting in defendant’s convictions, is more
fully set forth in the appellate court’s original opinion. See 2016 IL App (4th)
140321 (Morger I) (remanding for resentencing because the circuit court had
delegated the responsibility of imposing conditions of probation to “Court
Services”). We summarize here only those facts pertinent to our disposition.
¶6 In January 2013, defendant, who was 20 years old (born May 14, 1992), was
charged with aggravated criminal sexual abuse and criminal sexual abuse. Each
charge alleged that defendant’s criminal acts—perpetrated against his teenage
sister—occurred between August 2010 and November 2012. The evidence at
defendant’s bench trial established that defendant, while in the family residence,
touched his sister’s breast and vagina and that he had her touch his penis. Defendant
was convicted of both charges. As the State points out, presentencing evaluation by
a clinician concluded that defendant was viewed as “a moderate to high risk to
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reoffend,” but it was “likely” that he could be safely treated in the community with
appropriate supervision. The evaluator recommended, among other things, that
defendant be prohibited from having contact with anyone under 18 years of age and
from viewing, owning, or downloading pornography or sexually stimulating
material. 2 Statutory conditions of probation referenced at the outset of this opinion
implemented those recommendations. Those conditions and a host of others (18 in
all) were ultimately imposed by the McLean County circuit court—after remand
from the appellate court—as part of defendant’s four-year sentence of probation.
¶7 When the case again came before the appellate court, defendant challenged
multiple conditions of his probation—including the condition challenged here—all
of which were upheld. 2018 IL App (4th) 170285 (Morger II). Defendant’s
constitutional challenge to the flat ban on the use of social media was premised
principally, as it is now, upon the United States Supreme Court’s decision in
Packingham v. North Carolina, 582 U.S. ___, 137 S. Ct. 1730 (2017). Morger II,
2018 IL App (4th) 170285, ¶ 69.
¶8 In Packingham, defendant, a registered sex offender who had completed his
sentence, was convicted for violating a North Carolina law that barred registered
sex offenders from gaining access to commercial social networking websites. The
Supreme Court concluded the North Carolina statute impermissibly restricted
lawful speech in violation of the first amendment. Packingham, 582 U.S. at ___,
137 S. Ct. at 1737.
¶9 The appellate court found this case
“different from Packingham in two important respects: (1) defendant’s access
to social media is not foreclosed altogether, as was the case in Packingham, and
(2) defendant has not yet completed his sentence and his probation conditions
cannot ‘endure for 30 years or more.’ Packingham, 582 U.S. at ___, 137 S. Ct.
at 1734.” (Emphasis in original.) Morger II, 2018 IL App (4th) 170285, ¶ 83.
¶ 10 With respect to the first distinction, the appellate court construed the conditions
of defendant’s probation so as to allow a probation officer to “temporarily *** lift
2
During an interview with a detective, in which defendant admitted his conduct and repeatedly
expressed remorse, defendant acknowledged that, prior to the incidents with his sister, he had
watched pornography on the Internet.
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or modify a condition if the probation officer believed doing so would be
appropriate, given both defendant’s need to have that condition temporarily lifted
or modified, as well as the need to protect the public, particularly children.” Id.
¶ 82. The appellate court believed the broad powers granted a probation officer
under subsection (b)(18) of section 5-6-3—a discretionary condition of probation
imposed in this case—allowed the probation officer to “lift” what, by its terms,
appears to be the mandatory, unequivocal ban on access to social media imposed
by subsection (a)(8.9).
¶ 11 The appellate court also found Packingham distinguishable because
(1) defendant was still serving his sentence, unlike Packingham, and thus defendant
could be subjected to restrictions that would be unconstitutional if applied to
Packingham and (2) the ban on defendant’s access to social media was only
temporary—for the duration of his sentence—whereas the ban in Packingham had
no temporal limitation—it was, in effect, a lifetime ban.
¶ 12 Before the appellate court, defendant argued that multiple conditions of his
probation were “unconstitutional, overly broad, and unreasonable.” The appellate
court rejected those arguments. Before this court, he argues, on the basis of
overbreadth, only one condition is unconstitutional—the “complete ban” on the use
of social media.
¶ 13 ANALYSIS
¶ 14 As a preliminary matter, the parties have acknowledged the completion of
defendant’s sentence, which would render this matter moot. Nonetheless, they
submit that an exception to the mootness doctrine applies.
¶ 15 Although, as a general rule, we will not decide moot questions (In re Jarquan
B., 2017 IL 121483, ¶ 17), this court has recognized exceptions to that rule (see
In re Alfred H.H., 233 Ill. 2d 345, 354-55 (2009) (discussing the public interest
exception, the capable-of-repetition-yet-avoiding-review exception, and the
collateral consequences exception to the mootness doctrine)). The public interest
exception applies when (1) the question presented is of a public nature, (2) there is
a need for an authoritative determination for the future guidance of public officers,
and (3) there is a likelihood of future recurrence of the question. In re Lance H.,
-6-
2014 IL 114899, ¶ 13. This case meets those criteria. The issue implicates first
amendment rights and access to social media websites—which the Supreme Court
has characterized as “the modern public square.” See Packingham, 582 U.S. at ___,
137 S. Ct. at 1737. The flat ban on access to those websites, by its terms, applies to
any probationer convicted of a sex offense as defined in SORA. Hence, the question
of its constitutionality will recur frequently until authoritatively resolved by this
court. We thus consider the issue presented under the public interest exception.
¶ 16 Principles of Review
¶ 17 The probationary condition at issue is statutory and mandatory for all
probationers who are convicted of a sex offense as defined in SORA. The
constitutionality of a statute is a question of law that we review de novo. People v.
Minnis, 2016 IL 119563, ¶ 21. All statutes are presumed constitutional; the party
challenging the constitutionality of a statute has the burden of clearly establishing
its invalidity. Id. This court must construe the statute so as to uphold its
constitutionality if reasonably possible. Id.¶ 18 With respect to our probation system, specifically, this court has recognized
that the State of Illinois has a legitimate interest in promoting the effective operation
of its probation system, which serves the purposes of rehabilitating probationers
while punishing them and protecting the public from crime. People v. Lampitok,
207 Ill. 2d 231, 250 (2003). The effectiveness of that system will, at times,
necessarily involve limitations on constitutional rights the probationer would
otherwise enjoy. As the Supreme Court observed in Griffin v. Wisconsin, 483 U.S.
868, 874 (1987):
“To a greater or lesser degree, it is always true of probationers (as we have said
it to be true of parolees) that they do not enjoy ‘the absolute liberty to which
every citizen is entitled, but only . . . conditional liberty properly dependent on
observance of special [probation] restrictions.’ Morrissey v. Brewer, 408 U.S.
471, 480 (1972).”
¶ 19 In accord with those observations, this court, in In re J.W., 204 Ill. 2d 50, 78
(2003), noted that a condition of probation that impinges on fundamental
constitutional rights is not automatically deemed invalid, as even fundamental
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constitutional rights are not absolute and may be reasonably restricted in the public
interest. When deciding the propriety of a condition of probation imposed in a
particular case, whether explicitly statutory or not, the overriding concern is
reasonableness. Id. “To be reasonable, a condition of probation must not be overly
broad when viewed in the light of the desired goal or the means to that end.” Id.The court in J.W. explained, in a context similar to the one now before this court:
“In other words, ‘ “[w]here a condition of probation requires a waiver of precious
constitutional rights, the condition must be narrowly drawn; to the extent it is
overbroad it is not reasonably related to the compelling state interest in reformation
and rehabilitation and is an unconstitutional restriction on the exercise of
fundamental constitutional rights.” ’ ” Id. (quoting In re White, 158 Cal. Rptr. 562,
565-66 (Ct. App. 1979), quoting People v. Mason, 488 P.2d 630, 635 (Cal. 1971)).
“When assessing the reasonableness of a condition of probation it is
appropriate to consider whether the restriction is related to the nature of the
offense or the rehabilitation of the probationer. [Citations.] Other
considerations are: (1) whether the condition of probation reasonably relates to
the rehabilitative purpose of the legislation, (2) whether the value to the public
in imposing this condition of probation manifestly outweighs the impairment to
the probationer’s constitutional rights, and (3) whether there are any alternative
means that are less subversive to the probationer’s constitutional rights, but still
comport with the purposes of conferring the benefit of probation.” Id. at 79.
¶ 20 In J.W., this court concluded that a condition of probation that, for all purposes,
“banished” the 12-year-old defendant from South Elgin—where he had resided
with his parents and where the sex crimes were committed—was unconstitutionally
overbroad as it “fail[ed] to make any provision for J.W. to enter the area for
legitimate purposes.” Id. at 81.
¶ 21 This defendant argues that the statutory prohibition on probationers accessing
social media websites is facially unconstitutional as overbroad because, inter alia,
it admits of no exceptions for legitimate purposes.
¶ 22 “A statute is overbroad on its face if it prohibits constitutionally protected
activity as well as activity that may be prohibited without offending constitutional
rights.” People v. Relerford, 2017 IL 121094, ¶ 50. In order to survive intermediate
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scrutiny, a content-neutral regulation of protected speech—such as that at issue
here—
“(1) must serve or advance a substantial governmental interest unrelated to the
suppression of free speech and (2) must not burden substantially more speech
than necessary to further that interest—or in other words, it must be narrowly
tailored to serve that interest without unnecessarily interfering with first
amendment freedoms.” Minnis, 2016 IL 119563, ¶ 36.
¶ 23 The overbreadth doctrine permits a party to challenge a statute as a facial
violation of the first amendment, even if that party’s conduct would not fall within
the amendment’s protection. Relerford, 2017 IL 121094, ¶ 50. Although in a typical
facial challenge, a defendant would have to establish that no set of circumstances
exist under which the statute would be valid, in the first amendment context, a law
may be invalidated as overbroad if a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep. People
v. Clark, 2014 IL 115776, ¶ 11; Minnis, 2016 IL 119563, ¶ 44 (concluding that
statute did no more than eliminate the exact source of the evil it sought to remedy);
see also Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694, 698 (7th Cir.
2013) (noting that the United States Supreme Court “has invalidated bans on
expressive activity that are not the substantive evil if the state had alternative means
of combating the evil”).
¶ 24 In this case, the statute’s ban on the use of social media applies to all
probationers who are convicted of a sex offense, as defined in the SORA, whether
or not a minor was involved and whether or not the use of social media was a factor
in the commission of the offense.
¶ 25 Packingham v. North Carolina
¶ 26 The parties recognize that the Supreme Court’s decision in Packingham is
pivotal in this case. As such, we look, in detail, at the observations and findings of
the Packingham Court.
¶ 27 As noted, North Carolina made it a felony for a registered sex offender “to
access a commercial social networking Web site where the sex offender knows that
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the site permits minor children to become members or to create or maintain personal
Web pages.” N.C. Gen. Stat. § 14-202.5(a) (2009). The statute included two express
exemptions. The statutory bar did not extend to websites that “[p]rovid[e] only one
of the following discrete services: photo-sharing, electronic mail, instant
messenger, or chat room or message board platform.” Id. § 14-202.5(c)(1). The law
also did not encompass websites that have as their “primary purpose the facilitation
of commercial transactions involving goods or services between [their] members
or visitors.” Id. § 14-202.5(c)(2); see Packingham, 582 U.S. at ___, 137 S. Ct. at
1734.
¶ 28 At the outset of an opinion that would ultimately strike down the North Carolina
statute, the Supreme Court repeatedly emphasized the importance of social media
in modern life:
“While in the past there may have been difficulty in identifying the most
important places (in a spatial sense) for the exchange of views, today the answer
is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in
general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997),
and social media in particular. ***
Social media offers ‘relatively unlimited, low-cost capacity for
communication of all kinds.’ Reno, supra, at 870. On Facebook, for example,
users can debate religion and politics with their friends and neighbors or share
vacation photos. On LinkedIn, users can look for work, advertise for employees,
or review tips on entrepreneurship. And on Twitter, users can petition their
elected representatives and otherwise engage with them in a direct manner. ***
In short, social media users employ these websites to engage in a wide array of
protected First Amendment activity on topics ‘as diverse as human thought.’
Reno, supra, at 870 (internal quotation marks omitted).
***
*** [T]he Court must exercise extreme caution before suggesting that the
First Amendment provides scant protection for access to vast networks in that
medium.” Packingham, 582 U.S. at ___, 137 S. Ct. at 1735-36.
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¶ 29 Though extolling the virtues of the Internet and social media, the Court
tempered its enthusiasm with the recognition that those media of communication
are subject to abuse by criminal elements:
“For centuries now, inventions heralded as advances in human progress
have been exploited by the criminal mind. New technologies, all too soon, can
become instruments used to commit serious crimes. *** So it will be with the
Internet and social media.” Id. at ___, 137 S. Ct. at 1736.
¶ 30 In that regard, the Court immediately turned to a discussion of sex crimes
committed against children—tacitly acknowledging that social media websites
furnish a ready means for orchestrating the sexual abuse of children:
“[A]s this Court has recognized, ‘[t]he sexual abuse of a child is a most serious
crime and an act repugnant to the moral instincts of a decent people.’ Ashcroft
v. Free Speech Coalition, 535 U. S. 234, 244 (2002). And it is clear that a
legislature ‘may pass valid laws to protect children’ and other victims of sexual
assault ‘from abuse.’ See id., at 245; accord, New York v. Ferber, 458 U. S. 747,
757 (1982). The government, of course, need not simply stand by and allow
these evils to occur. But the assertion of a valid governmental interest ‘cannot,
in every context, be insulated from all constitutional protections.’ Stanley v.
Georgia, 394 U. S. 557, 563 (1969).” Id. at ___, 137 S. Ct. at 1736.
¶ 31 En route to resolving the issue before the Court—applying intermediate
scrutiny to a statute it assumed was content-neutral—the Supreme Court made two
further assumptions: (1) the scope of the statute applied to commonplace social
networking sites like Facebook, LinkedIn, and Twitter, and (2) the first amendment
permits a state to enact specific, narrowly tailored laws that prohibit a sex offender
from engaging in conduct that presages a sex crime, like contacting a minor or using
a website to gather information about a minor. The Court emphasized: “Specific
laws of that type must be the State’s first resort to ward off the serious harm that
sexual crimes inflict.” Id. at ___, 137 S. Ct. at 1737. The Court then cryptically
added in dictum: “(Of importance, the troubling fact that the law imposes severe
restrictions on persons who already have served their sentence and are no longer
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subject to the supervision of the criminal justice system is also not an issue before
the Court.)” Id. at ___, 137 S. Ct. at 1737. 3
¶ 32 That said, the Court determined that the statute was not narrowly tailored to
serve a significant governmental interest. Id. at ___, 137 S. Ct. at 1736-37.
“Even with these assumptions about the scope of the law and the State’s
interest, the statute here enacts a prohibition unprecedented in the scope of First
Amendment speech it burdens. *** By prohibiting sex offenders from using
those websites, North Carolina with one broad stroke bars access to what for
many are the principal 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.” Id. at ___, 137 S.
Ct. at 1737.
¶ 33 The Court concluded:
“In sum, to foreclose access to social media altogether is to prevent the user
from engaging in the legitimate exercise of First Amendment rights. It is
unsettling to suggest that only a limited set of websites can be used even by
persons who have completed their sentences. Even convicted criminals—and
in some instances especially convicted criminals—might receive legitimate
benefits from these means for access to the world of ideas, in particular if they
seek to reform and to pursue lawful and rewarding lives.” Id. at ___, 137 S. Ct.
at 1737.
¶ 34 The interpretation of those last two sentences carries momentous weight in our
resolution of this case. In the wake of Packingham, federal decisions following the
Court’s decision have tended to focus only on the first of those two, emphasizing
the Court’s reference to “persons who have completed their sentences,” as a
limitation of the Court’s holding.
3
The comment, perhaps, expresses the Court’s concern over the proliferation of statutes that
govern the lives of sex offenders who have served their sentences, circumscribing myriad aspects
of their lives.
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¶ 35 Federal Court of Appeals Decisions
¶ 36 Federal decisions reviewing the propriety of conditions of supervised release
deal with the same concerns that we consider relevant when imposing conditions
of probation: deterrence of crime, protection of the public, and rehabilitation. 4
¶ 37 Some federal decisions prior to Packingham, such as United States v.
Burroughs, 613 F.3d 233, 244-45 (D.C. Cir. 2010), held that, where a defendant
sex offender did not use a computer to facilitate his crimes, the imposition of
unexplained conditions restricting his use of a computer, while on supervised
release, constitutes error. Compare United States v. Albertson, 645 F.3d 191, 198
(3d Cir. 2011) (ban on Internet use unless preapproved by probation is “too broad
unless the defendant has used the internet as an instrument of harm”), with United
States v. Legg, 713 F.3d 1129 (D.C. Cir. 2013), and United States v. Laureys, 653
F.3d 27 (D.C. Cir. 2011) (cases in which the Internet was used to commit the
crimes). The Burroughs court noted, inter alia:
“The government argues that these restrictions are related to Burroughs’s
conduct because the Internet can be used to arrange sexual encounters with
minors and to advertise minors for prostitution. Of course it can. But from drug
dealers to Ponzi schemers and smugglers to stalkers—nearly any criminal can
use the Internet to facilitate illegal conduct. That an offense is sometimes
committed with the help of a computer does not mean that the district court can
restrict the Internet access of anyone convicted of that offense.” Burroughs, 613
F.3d at 243.
¶ 38 In United States v. Perazza-Mercado, 553 F.3d 65 (1st Cir. 2009), the court of
appeals considered a flat ban on home use of the Internet as a condition of
supervised release. The court recognized:
4
Section 3583(d)(1) of Title 18 requires that discretionary conditions of supervised release be
“reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).”
18 U.S.C. § 3583(d)(1) (2000). Those factors are “the nature and circumstances of the offense and
the history and characteristics of the defendant”; the need “to afford adequate deterrence to criminal
conduct”; the need “to protect the public from further crimes of the defendant”; and the need “to
provide the defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner.” Id. § 3553(a)(1), (a)(2)(B), (C), (D).
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“[O]ur sister circuits have upheld broad restrictions on internet access as a
condition of supervised release where (1) the defendant used the internet in the
underlying offense; (2) the defendant had a history of improperly using the
internet to engage in illegal conduct; or (3) particular and identifiable
characteristics of the defendant suggested that such a restriction was
warranted.” Id. at 70.
The court noted, however,
“Conversely, in cases where there is an insufficient nexus with a
defendant’s conduct or characteristics, courts have vacated supervised release
conditions restricting internet access. For example, in United States v. Freeman,
316 F.3d 386 (3d Cir. 2003), ‘there [was] nothing in t[he] record to suggest that
[defendant] ha[d] used the internet to contact young children’ or solicit
inappropriate sexual contact. Id. at 392. Accordingly, the court found that a
restriction forbidding defendant from owning a computer or accessing the
internet without the approval of his probation officer was ‘overly broad.’ Id.”
Id. at 71.
¶ 39 One might think that Packingham’s effusive description of social media
websites as “the modern public square,” for purposes of the first amendment, would
result in an extension of Burroughs’s principles with respect to sex offenders—on
supervised release or probation—who have not used the Internet to commit their
crimes. However, as the State notes, many post-Packingham cases have limited the
reach of Packingham, a recent case noting that “Packingham invalidated only a
post-custodial restriction and expressed concern that the statute applied even to
persons who have already served their sentence.” (Emphasis in original and internal
quotation marks omitted.) United States v. Carson, 924 F.3d 467, 473 (8th Cir.
2019).
“Because supervised release is part of a defendant’s sentence, Packingham does
not render a district court’s restriction on access to the internet during a term of
supervised release plain error. [Citations.] We find this reasoning applies with
equal force here. Thus, even assuming the district court’s prohibition on
creating or maintaining a social media profile implicates the same First
Amendment interests as a restriction on accessing social media altogether, the
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district court did not commit plain error by imposing Special Condition 16.”
(Emphasis in original.) Id.It appears, in all of the cases cited in this paragraph of Carson, use of the Internet
was somehow involved in the commission of the offenses. However, the dispositive
point emphasized was that those defendants—subject to the prohibitory
conditions—were still serving their sentences.
¶ 40 At least one post-Packingham case has emphasized the need for narrow
tailoring and consistency of conditions of supervised release. See United States v.
Holena, 906 F.3d 288 (3d Cir. 2018). Holena repeatedly visited an online chatroom
and tried to entice a 14-year-old boy to have sex. As it turned out, the “boy” was an
FBI agent. Holena pled guilty to attempting to entice a minor to engage in sexual
acts. He was sentenced to 10 years’ imprisonment and a lifetime of supervised
release. As a special condition of that supervised release, he was forbidden to use
the Internet without his probation officer’s approval. He had to submit to regular
searches of his computer and home, and he had to let the probation office install
monitoring and filtering software on his computer. Id. at 290.
¶ 41 After serving his prison sentence, Holena violated the terms of his supervised
release on two occasions. The first time, he went online to update social media
profiles and answer e-mails. The second time, he logged into Facebook without
approval, then lied about it to his probation officer. After each violation, the court
sentenced him to nine more months’ imprisonment and reimposed the special
conditions. At Holena’s latest revocation hearing, the judge imposed another
condition, forbidding him to possess or use any computers, electronic
communications devices, or electronic storage devices. Holena objected to that
lifetime ban. Id.
¶ 42 The court of appeals found the conditions imposed upon Holena to be
impermissibly contradictory and more restrictive than necessary. Id. at 291. In the
latter respect, as the court was remanding to the district court for tailoring of
conditions, the court offered this guidance:
“The District Court can limit Holena’s First Amendment rights with
appropriately tailored conditions of supervised release. Defendants on
supervised release enjoy less freedom than those who have finished serving
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their sentences. See United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587,
151 L.Ed.2d 497 (2001); United States v. Rock, 863 F.3d 827, 831 (D.C. Cir.
2017). But, as we have noted, these restrictions must be tailored to deterring
crime, protecting the public, or rehabilitating the defendant. Under
Packingham, blanket internet restrictions will rarely be tailored enough to pass
constitutional muster.” Id. at 294-95.
¶ 43 Subsection (a)(8.9)’s Ban on the Use of Social Media
¶ 44 Turning to the specific statutory condition here at issue—subsection (a)(8.9) of
section 5-6-3—we reject, at the outset, the suggestion of the appellate court that a
probation officer could “temporarily *** lift or modify” the statute’s ban on access
to, or use of, social media. See Morger II, 2018 IL App (4th) 170285, ¶ 82. The
State now concedes that is not the case. 5 Subsection (b)(18) of section 5-6-3—a
discretionary condition of probation that was imposed in this case—provides for
extensive monitoring of a defendant’s devices “with Internet capability.” In fact, an
offender cannot—without violating that condition of probation—access or use a
device “with Internet capability”—anyone’s device—without the prior approval of
his or her probation officer. However, subsection (b)(18) does not specifically
address what Internet sites a defendant may visit. 6 Moreover, it does not allow a
probation officer to authorize an offender’s access to sites—in this instance a whole
category of sites—that the legislature has chosen to restrict. Hence, we reject the
appellate court’s conclusion that a probation officer may “lift” subsection (a)(8.9)’s
mandatory, flat ban on the use of social media.
¶ 45 With that clarification, we examine the constitutionality of the statute using the
lens of intermediate scrutiny—and the standard of review is intermediate scrutiny.
Like the statute at issue in Minnis—where we found the statute to be content-neutral
and applied intermediate scrutiny—this “provision is part of a statutory scheme
5
In a footnote at page six of the State’s brief, the State acknowledges: “The appellate court
appears to have conflated the probation condition that permitted defendant to use a computer or
other Internet-connected device with his probation officer’s approval, *** with the condition
prohibiting defendant from using or accessing social networking websites, which allowed for no
override by the probation officer.”
6
We also observe, because it is discretionary, it may not apply in every case where the
imposition of subsection (a)(8.9) is required.
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intended to prevent sex offenses against children and to protect the public.” Minnis,
2016 IL 119563, ¶ 34. We note, as well, that the Supreme Court in Packingham,
considering a flat ban on the use of social media with some similarities to the one
now before us, proceeded on the basis that the statute was content-neutral and
“subject to intermediate scrutiny.” Packingham, 582 U.S. at ___, 134 S. Ct. at 1736.
In Packingham, the Supreme Court noted—as did this court in Minnis—that in
order to survive intermediate scrutiny, a law must be narrowly tailored to serve a
significant governmental interest; it must not burden substantially more speech than
is necessary to further the government’s legitimate interests. Id. at ___, 134 S. Ct.
at 1736; Minnis, 2016 IL 119563, ¶ 34.
¶ 46 The requirement of narrow tailoring dovetails, for purposes of our review, with
standards for imposing probationary conditions that impinge upon constitutional
rights. As J.W. instructs,
“[w]here a condition of probation requires a waiver of precious constitutional
rights, the condition must be narrowly drawn; to the extent it is overbroad, it is
not reasonably related to the compelling state’s interest in reformation and
rehabilitation and is an unconstitutional restriction on the exercise of
fundamental constitutional rights.” (Internal quotation marks omitted.) J.W.,
204 Ill. 2d at 78.
In the end, the geographical restriction challenged in J.W. failed to pass
constitutional muster because it failed to make an exemption from the restriction
for legitimate purposes; i.e., it was not “narrowly drawn.” Id. at 81-82.
¶ 47 Considerations identified in J.W. as bearing upon the question of whether a
condition of probation, impinging upon constitutional rights, is reasonably related
to the goals of probation and, thus, narrowly drawn and not overbroad, include
(1) the nature of the offense, (2) the rehabilitation of the defendant, (3) whether the
condition of probation reasonably relates to the rehabilitative purpose of the
legislation, (4) whether the value to the public in imposing the condition of
probation manifestly outweighs the impairment to the probationer’s constitutional
rights, and (5) whether there are any alternative means that are less subversive to
the probationer’s constitutional rights but still comport with the purposes of
conferring the benefit of probation. Id. at 79. The last consideration necessarily
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requires that we take into account other conditions of probation that were available
for utilization and/or were, in fact, imposed.
¶ 48 We begin with the nature of the sexual offenses committed by defendant. The
first act was committed while defendant was still a teenager. The offenses involved
sexual conduct in the family home with a younger sibling, who was also a teenager.
The offenses were, in a sense, crimes of opportunity and convenience. It does not
appear that defendant sought victims over the Internet 7 or, more generally, in the
community or world at large. There is nothing to suggest that defendant was a
sexual predator who would use the Internet to find and molest children.
¶ 49 As far as his prospects for rehabilitation are concerned, we have only the
assessment of the evaluator, who concluded that defendant was viewed as “a
moderate to high risk to reoffend” but it was “likely” that he could be safely treated
in the community with appropriate supervision. In furtherance of that treatment, the
evaluator recommended, inter alia, that defendant be prohibited from having
contact with anyone under 18 years of age and from viewing, owning, or
downloading pornography or sexually stimulating material. Conditions of
probation implementing both of those recommendations were included in the
circuit court’s order of probation.
¶ 50 Next is the broader question: whether the contested condition of probation—
here a total ban on access to social media applicable to all sex offenders—
reasonably relates to the rehabilitative purpose of the legislation. During oral
argument of this case, the State was asked to explain how the total ban on access to
social media would contribute to a defendant’s rehabilitation. After some
circuitous, nonresponsive references to protection of the public, the answer was that
the ban would remove the “temptation to reoffend.” That answer might carry some
weight where a defendant is one who has used social media to orchestrate and
ultimately commit his crimes; 8 however, a host of offenders—this defendant
7
The Internet was, however, a factor insofar as defendant viewed pornography over the Internet
immediately before the acts of sexual conduct occurred.
8
It would seem that counseling and treatment would more likely ensure successful
rehabilitation, as opposed to a mere temporary ban on the use of social media.
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included—do not fall into that category. Subsection (a)(8.9) broadly sweeps the
latter in with offenders who have used social media to prey upon others. 9
¶ 51 Moreover, we find an observation in Packingham relevant in this context. The
Court, in Packingham, concluded,
“[T]o foreclose access to social media altogether is to prevent the user from
engaging in the legitimate exercise of First Amendment rights. It is unsettling
to suggest that only a limited set of websites can be used even by persons who
have completed their sentences. Even convicted criminals—and in some
instances especially convicted criminals—might receive legitimate benefits
from these means for access to the world of ideas, in particular if they seek to
reform and to pursue lawful and rewarding lives.” (Emphasis added.)
Packingham, 582 U.S. at ___, 137 S. Ct. at 1737.
¶ 52 Federal courts limiting the reach of Packingham have focused on the second
sentence of this paragraph—particularly the phrase, “even by persons who have
completed their sentences”—to find that the principles of Packingham do not apply
to those still serving their sentences—a group the Packingham Court had no reason
to address. Those courts ignore the last sentence—italicized supra—which refers
to the reformative and rehabilitative aspects of access to social media.
¶ 53 However, those who are still serving their sentences are also “convicted
criminals” who “might receive legitimate benefits” from social media as “they seek
to reform and to pursue lawful and rewarding lives.” Id. at ___, 137 S. Ct. at 1737
One has to ask how “reform” differs from “rehabilitation” and, if there is no
difference, why foreclosure of access to social media inhibited a sex offender’s
“reform” and was unconstitutional, in Packingham, but subsection (a)(8.9)’s total
ban on access for all sex offenders on probation furthers the goal of
“rehabilitation,” without “tailoring” as to substance or circumstance. 10
9
As noted in a recent law review article, some states—Illinois included—do not give judges
and supervising officers the option of declining to impose restrictions on access to social media. See
Jacob Hutt, Offline: Challenging Internet and Social Media Bans for Individuals on Supervision for
Sex Offenses, 43 N.Y.U. Rev. L. & Soc. Change 663, 665 (2019).
10
As one commentator has observed, in conjunction with a discussion of Packingham:
“The irony of these restrictions lies in the supposedly rehabilitative and reintegrative purposes
underlying supervision: the very technology that supervised individuals could use to seek out
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¶ 54 To be sure, moving on to consider the next factor identified in J.W.—“whether
the value to the public in imposing this condition of probation manifestly outweighs
the impairment to the probationer’s constitutional rights”—the ban of subsection
(a)(8.9) protects the public from those offenders who would use social media for
unlawful purposes. The ban in Packingham sought to further the same end. Yet,
assuming that the North Carolina law applied to social networking sites such as
“Facebook, LinkedIn, and Twitter”—sites that would fall within the purview of
subsection (a)(8.9) as well—the Supreme Court found the law could not stand
because it was not narrowly tailored to serve that significant governmental interest.
See id. at ___, 137 S. Ct. at 1736-37. The broad ban of the law could not be
sustained solely on the ground that it protected the public against sex offenders,
though it undoubtedly did that. It unconstitutionally impaired the first amendment
rights of convicted sex offenders. In this case, we find that the protective value of
the social media ban, in its current, absolute form, does not manifestly outweigh
the impairment to the probationer’s constitutional rights.
¶ 55 That is particularly so when we consider the final J.W. factor: whether there are
any alternative means that are less subversive to the probationer’s constitutional
rights but still comport with the purposes of conferring the benefit of probation.
There obviously are. They were additional conditions of probation imposed in this
very case.
¶ 56 If the concern is that defendant might contact other minors via the Internet for
sexual purposes, the mandatory condition of probation set forth in subsection
(a)(8.7) of section 5-6-3 specifically prohibited defendant from doing so. Moreover,
the discretionary condition of probation imposed pursuant to subsection (b)(18) of
section 5-6-3 grants a defendant’s probation officer broad oversight of the
defendant’s access to, or use of, any device with Internet capability, including
(1) preliminary approval of use, (2) unannounced examinations of devices with
Internet capability, (3) the right to install “hardware or software systems” on a
defendant’s devices to monitor Internet use, and (4) the power to impose “any other
appropriate restrictions concerning the offender’s use of or access to a *** device
employment, to reconnect with estranged family members, to become engaged in politics, and
to stay informed on current events is prohibited. The ends of parole—‘to help individuals
reintegrate into society as constructive individuals as soon as they are able’—are obstructed by
its means.” Hutt, supra at 665-66.
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with Internet capability.” As if that were not enough, the mandatory condition
imposed pursuant to subsection (a)(11) of section 5-6-3 prohibits, for good
measure, a probationer convicted of a sex offense from knowingly using computer
scrub software.
¶ 57 Defendant does not, before this court, challenge the constitutionality of any of
those provisions. They provide ready examples of how the conditions of
defendant’s probation could be “narrowly drawn” so as to not function as an
“unconstitutional restriction on the exercise of fundamental constitutional rights.”
(Internal quotation marks omitted.) See J.W., 204 Ill. 2d at 78. Defendant could not
contact a minor via the Internet without violating a specific condition of his
probation—condition No. 7 (730 ILCS 5/5-6-3(a)(8.7) (West 2016)). Pursuant to
condition No. 8 (id. § 5-6-3(b)(18)), he could not—without violating his
probation—even access or use a device with Internet capability without the prior
approval of his probation officer. That condition mandates prospective and
retrospective scrutiny of everything defendant would do, or did, on the Internet.
¶ 58 Having considered the factors this court identified as relevant in J.W., we
conclude that the probationary condition set forth in subsection (a)(8.9) of section
5-6-3 of the Code of Corrections is overbroad and facially unconstitutional. Like
the geographic ban in J.W., the social media ban is absolute, admitting of no
exceptions for legitimate use (see J.W., 204 Ill. 2d at 81), which could be supervised
and overseen by a defendant’s probation officer. 11 Applying the tenets of
Packingham, we find that subsection (a)(8.9), in its current form, “prohibits
constitutionally protected activity as well as activity that may be prohibited without
offending constitutional rights.” Relerford, 2017 IL 121094, ¶ 50. “[A] substantial
number of its applications are unconstitutional, judged in relation to the statute’s
legitimate sweep” (Clark, 2014 IL 115776, ¶ 11), which is the protection of the
public. 12 The condition of probation is not narrowly drawn, as J.W. requires. See
J.W., 204 Ill. 2d at 78. It unnecessarily sweeps within its purview those who never
11
We assume, for purposes of this analysis only, that subsection (b)(18) of section 5-6-3 is
constitutional, as defendant is not challenging its constitutionality in this court.
12
As noted supra, we are not persuaded that subsection (a)(8.9) provides rehabilitative value—
according to the State, the removal of temptation to reoffend—that outweighs, in many
circumstances, its detriment to rehabilitation, given the Supreme Court’s statements regarding the
positive value of social media in a sex offender’s reformation.
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used the Internet—much less social media—to commit their offenses and who show
no propensity to do so, as well as those whose Internet activities can be supervised
and monitored by less restrictive means.
¶ 59 For the reasons stated, we find probationary condition No. 5, imposed pursuant
to subsection (a)(8.9) of section 5-6-3 of the Code of Corrections,
unconstitutionally overbroad. We express no opinion as to the constitutionality of
other conditions of probation imposed in this case, as they are not challenged in this
court. Consequently, we reverse, in part, the judgment of the appellate court and
vacate the probationary condition banning access to, or use of, social media. We
otherwise affirm the appellate court’s judgment as to issues not before us.
¶ 60 Appellate court judgment affirmed in part and reversed in part.
¶ 61 Circuit court judgment affirmed in part and vacated in part.
¶ 62 CHIEF JUSTICE BURKE took no part in the consideration or decision of this
case.
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