State v. Johnson ( 2021 )

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE JUNE 10, 2021
SUPREME COURT, STATE OF WASHINGTON
JUNE 10, 2021
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
STATE OF WASHINGTON, )
)
Respondent, ) No. 98493-0
)
v. )
)
CHRISTOPHER R. JOHNSON, )
)
Petitioner. ) Filed : June 10, 2021
_______________________________)
GONZÁLEZ, C.J.— Christopher Johnson was convicted of child sex crimes.
He challenges a condition of community custody as unconstitutionally overbroad
and vague. This condition will require Johnson to access the Internet only through
filters approved by his community custody officer. We agree that this condition
could implicate Johnson’s constitutional rights and must be applied carefully by his
future community custody officer. However, when read in light of Johnson’s
convictions for attempted second degree child rape, attempted sexual abuse of a
minor, and communication with a minor for immoral purposes, we conclude that
the condition is neither overbroad nor vague. Accordingly, we affirm.
State v. Johnson, No. 98493-0
FACTS
This case began with a sting operation conducted by the Missing and
Exploited Children Task Force, which looked for potential child sex predators.
Task force members advertised on the Craigslist website, seeming to invite sex.
Johnson responded to one of these advertisements. Over the next few hours, he
and a task force member pretending to be a 13 year old girl exchanged text
messages and e-mail where they discussed meeting for sex, possibly in exchange
for money. They arranged a rendezvous in a public place. Johnson was arrested
not long after he arrived at the rendezvous.
Johnson was charged with attempted second degree rape of a child,
attempted commercial sexual abuse of a minor, and communication with a minor
for immoral purposes. Johnson’s defense theory was that he went on to Craigslist
looking for casual sex with an adult woman and that he had no intention of having
sex with a child. A jury found Johnson guilty as charged.
At sentencing, the State specifically asked the judge to prohibit Johnson
from accessing
the worldwide web through any means including but not limited to the
internet, unless authorized. I’m not asking he never can, but that it be
authorized by the [community custody officer] so that that could be tracked.
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State v. Johnson, No. 98493-0
That was the way in which this crime was committed. And that is absolutely
critical to combatting recidivism and to protecting the community.
Verbatim Report of Proceedings (May 18, 2018) at 16. Johnson strenuously
objected:
We are objecting to the majority of the probation conditions that [the State]
asked for. No access to the worldwide web. That is simply too broad. I don’t
know how a person would function in today’s world without accessing the
web. You can’t send an e-mail to your wife. You can’t look for a job. You
can’t sell your car. I think it’s appropriate that there be some monitoring,
there are filters that can be imposed. Those are appropriate. But simply
saying no access to the worldwide web unless specifically authorized by a
[community custody officer] is overly broad.
Id. at 37-38. The judge clearly wrestled with this issue:
I don’t want to exclude Mr. Johnson entirely from accessing the web. . . .
But I think the issue has to be with regards to filtering. And so I don’t know
how to deal with that at this point. I don’t want to exclude him entirely. But I
think that there has to be some mechanism to control so he’s not on web
sites related to the conduct here. So I don’t know how you want to deal with
that.
[THE STATE]: Except through a filter approved by [the Department of
Corrections]?
THE COURT: Yeah. Filter approved or something like that.
Id. at 51-52. The judge ultimately decided that Johnson shall “not use or access the
World Wide Web unless specifically authorized by [his community custody
officer] through approved filters” as a condition of community custody. Clerk’s
Papers at 99.
Johnson appealed on several grounds. The Court of Appeals affirmed on all
issues. State v. Johnson, 12 Wn. App. 2d 201, 205-06, 460 P.3d 1091 (2020). We
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State v. Johnson, No. 98493-0
granted review limited to Johnson’s challenge to the limitation on his future
Internet use. 196 Wn.2d 1001 (2020).
ANALYSIS
Johnson challenges this community custody condition as unconstitutionally
overbroad and vague. We review community custody conditions for abuse of
discretion. See State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008) (citing
State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993)). Among other things,
“[d]iscretion is abused if it is exercised on untenable grounds or for untenable
reasons.” State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002) (citing
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
It is manifestly unreasonable to impose an unconstitutional condition of
community custody. State v. Hai Minh Nguyen, 191 Wn.2d 671, 678, 425 P.3d
847 (2018) (citing Bahl, 164 Wn.2d at 753). But “[l]imitations upon fundamental
rights are permissible, provided they are imposed sensitively.” Riley, 121 Wn.2d
at 37 (citing United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir.
1975)). Restrictions on Internet access have both due process and First
Amendment implications. See Packingham v. North Carolina, __ U.S. __, 137 S.
Ct. 1730, 1735, 198 L. Ed. 2d 273 (2017) (citing Reno v. Am. Civil Liberties
Union, 521 U.S. 844, 868, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997)); Blondheim
v. State, 84 Wn.2d 874, 878, 529 P.2d 1096 (1975) (citing Grayned v. City of
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State v. Johnson, No. 98493-0
Rockford, 408 U.S. 104, 114, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972)); U.S.
CONST. amend. I. Judges may restrict a convicted defendant’s access to the
Internet, but those restrictions must be narrowly tailored to the dangers posed by
the specific defendant. State v. Padilla, 190 Wn.2d 672, 678, 416 P.3d 712 (2018);
United States v. Holena, 906 F.3d 288, 290 (3d Cir. 2018) (citing United States v.
Albertson, 645 F.3d 191, 197 (3d Cir. 2011)).
Johnson characterizes this condition as prohibiting him from using the
Internet without his community corrections officer’s approval. We disagree with
this characterization. When taken in light of the judge’s oral comments, we
conclude it merely requires that Johnson use the Internet only through filters that
have been approved by his community corrections officer. It should not be read to
require him to seek permission every time he would use the Internet. 1 With this
characterization in mind, we turn to his arguments.
1. OVERBREADTH
Johnson argues that the restriction on his Internet use is not narrowly
tailored to further the goals of the Sentencing Reform Act of 1981, ch. 9.94A
1
We respectfully disagree with the dissent’s characterization of the condition as a “total ban on
Johnson’s access to the Web, subject to exceptions yet to be determined.” Dissent at 6. Properly
read, this condition merely requires Johnson to use approved filters. We acknowledge that in an
unpublished decision, the Court of Appeals found a community custody condition of “‘No
internet use unless authorized by treatment provider and Community Custody Officer’” was
unconstitutionally vague and overbroad. State v. Forler, No. 79079-0-I, slip op. at 26-28 (Wash.
Ct. App. June 10, 2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/790790.pdf,
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State v. Johnson, No. 98493-0
RCW. We disagree. The act’s stated goals include preventing recidivism,
protecting the public, and providing offenders with opportunities to improve
themselves. RCW 9.94A.010. Johnson committed his crimes using the Internet.
A proper filter restricting his ability to use the Internet to solicit children or
commercial sexual activity will reduce the chance he will recidivate and will also
protect the public. While a blanket ban might well reduce his ability to improve
himself, a properly chosen filter should not. We encourage Johnson’s future
community custody officer to have a meaningful conversation with Johnson about
appropriate Internet use and to choose filters that will accommodate Johnson’s
legitimate needs.
Johnson also argues that the limitation on his Internet use is similar to
limitations imposed by a North Carolina statute the United States Supreme Court
struck down in Packingham, 137 S. Ct. at 1733-34, 1736-37. North Carolina
essentially barred anyone convicted of certain sex offenses from many popular
social media sites, including Facebook and Twitter. Id. at 1733, 1737. The Court
assumed that intermediate scrutiny applied, found the ban was not narrowly
tailored to further a significant governmental interest, and concluded that it
burdened substantially more speech than was necessary to further the
review denied, 194 Wn.2d 1011 (2019). That condition is substantively different from the one
present here, and the State did not petition for review of that holding.
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State v. Johnson, No. 98493-0
government’s interest. Id. at 1736-38. The Court also noted that a more narrowly
tailored restriction might well survive constitutional scrutiny:
it can be assumed that the First Amendment permits a State to enact specific,
narrowly tailored laws that prohibit a sex offender from engaging in conduct
that often presages a sexual crime, like contacting a minor or using a website
to gather information about a minor. Specific laws of that type must be the
State’s first resort to ward off the serious harm that sexual crimes inflict.
Id. at 1737 (citation omitted).
We conclude that the community custody condition here is significantly
narrower than the statute struck in Packingham. Johnson is not prohibited from
accessing any particular social media site. Instead, he is required to use the
Internet only through filters approved by his community custody officer. While
requiring Johnson to use an overzealous filter might violate the First Amendment,
that is a question of appropriate enforcement and a question for another day. 2
We conclude that this condition is not unconstitutionally overbroad.
2. VAGUENESS
A condition of community custody is unconstitutionally vague if it either
fails to give fair warning of what is forbidden or fails to give ascertainable
2
Johnson also suggests that the condition is potentially underinclusive because it restricts his
access to the World Wide Web, not the entire Internet. A substantially underinclusive law may
raise First Amendment concerns when, for example, the law claims a secular purpose, burdens a
particular religious practice, and does not target similar conduct outside of that practice. See,
e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543-44, 113 S. Ct.
2217, 124 L. Ed. 2d 472 (1993). But even assuming that the condition would not allow a
community custody officer to restrict Internet use outside the World Wide Web (an issue that is
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State v. Johnson, No. 98493-0
standards that will prevent arbitrary enforcement. Bahl, 164 Wn.2d at 752-53
(citing City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)).
“If ‘persons of ordinary intelligence can understand what the [law] proscribes,
notwithstanding some possible areas of disagreement, the [law] is sufficiently
definite.’” Id. at 754 (alterations in original) (quoting Douglass, 115 Wn.2d at
179).
In Bahl, we held that a condition of community custody prohibiting the
offender from possessing either pornography or sexually explicit material related
to his deviancy was unconstitutionally vague. 164 Wn.2d at 743 (citing record),
758, 761. We concluded that the term “pornography” was itself vague, and since
Bahl had not been diagnosed with sexual deviancy, prohibiting him from
possessing material related to it was “utterly lacking in any notice of what behavior
would violate it.” Id. at 758, 761. By contrast, we found a condition that required
Bahl not to “‘frequent establishments whose primary business pertains to sexually
explicit or erotic material’” was clear and did not violate due process protections.
Id. at 743 (quoting record), 759.
Similarly, in Nguyen, we rejected a claim that a prohibition on possessing
“sexually explicit material” was unconstitutionally vague. 191 Wn.2d at 681. We
not before us), Johnson points us to no case where a potentially underinclusive condition of
community custody has created a constitutional infirmity.
8
State v. Johnson, No. 98493-0
concluded a person of ordinary intelligence could discern its meaning, especially
as it was defined in a statute. Id. at 680 (citing Bahl, 164 Wn.2d at 759, and RCW
9.68.130(2)). We also found a condition requiring the defendant to inform her
community corrections officer of any “dating relationship” was not
unconstitutionally vague because “dating relationship” was commonly understood
in a fairly concrete way. Id. at 681-82. Like the conditions approved in Bahl and
Nguyen, this provision gives Johnson fair warning of what is forbidden to him—
accessing the Internet without the use of approved filters.
Johnson’s primary argument is that this condition lacks sufficiently specific
standards to prevent arbitrary enforcement by his future community custody
officer. Read in isolation, we might be inclined to agree. But read in a
commonsense fashion in the context of the judgment and sentence, and related
documents that will be available to Johnson’s future community corrections
officer, we find that there are sufficient benchmarks to prevent arbitrary
enforcement.3
We faced a somewhat similar argument in State v. Wallmuller, 194 Wn.2d
234, 449 P.3d 619 (2019)). Wallmuller concerned a community custody provision
3
For this reason, we respectfully disagree with the dissent that this condition is vague for lack of
ascertainable standards. Those standards can be found in the documents that shed light on the
meaning of the judgment and sentence. See generally In re Pers. Restraint of Coats, 173 Wn.2d
123, 138-39, 267 P.3d 324 (2011) (courts may consult documents that illuminate errors on the
face of a judgment and sentence (citing In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866
n.2, 50 P.3d 618 (2002))). We are aware of no constitutional or statutory rule that would confine
9
State v. Johnson, No. 98493-0
that provided, “‘The defendant shall not loiter in nor frequent places where
children congregate such as parks, video arcades, campgrounds, and shopping
malls.’” 194 Wn.2d at 237 (quoting record). Wallmuller challenged this condition
as inherently vague. Id. at 236. It was one of three conditions that related to
children. Of the other two, one restricted his contact with minor children except
for situations where another adult aware of his conviction is present (among other
requirements) and the other barred him from participating in youth programs. Id.
at 237 (quoting record). We concluded that when read in context of the illustrative
list and the other conditions of community custody, the condition was not vague
and did not invite arbitrary enforcement because “an ordinary person can
understand the scope of the prohibited conduct.” Id. at 245.
Similarly, in this case, we find that any danger of arbitrary enforcement is
constrained by other documents related to Johnson’s convictions. Most
specifically, the crimes themselves and the statement of probable cause provide
sufficient direction to prevent arbitrary enforcement. The statement of probable
cause contains a detailed recitation of the facts that led up to Johnson’s arrest,
including the role Johnson’s Internet use played. When read in conjunction with
this condition of community custody, these documents provide meaningful
the community custody officer to the four corners of the judgment. While as a practical matter,
in past eras, that might be all the officer has access to, in these days of digital court records, no
such limitations should exist.
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benchmarks to restrict arbitrary enforcement. Fairly read in the context of
Johnson’s crimes, he should not be allowed to use the Internet to solicit
commercial sex or sex with children. An appropriate filter should be selected with
this in mind.
The trial judge made an admirable attempt to draw a narrow condition. We
conclude he succeeded. When read in the light of Johnson’s convictions and the
facts that underlie them, there are sufficient relevant benchmarks to prevent
arbitrary enforcement.
CONCLUSION
We conclude that the limitation on Johnson’s future Internet use is neither
overbroad or vague. Accordingly, we affirm.
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State v. Johnson, No. 98493-0
____________________________
WE CONCUR:
_____________________________ ____________________________
_____________________________ ____________________________
_____________________________ ____________________________
_____________________________ ____________________________
12
State v. Johnson (Christopher R.)
No. 98493-0
MADSEN, J. (dissenting)—The majority holds that the community custody
condition precluding Christopher Johnson from using or accessing the World Wide Web
without a community-custody-officer-approved filter is sufficiently narrow and is not
overbroad or vague. Majority at 7, 11. Because the condition does not restrict Johnson
from accessing particular social media websites and requires approved Internet filters, the
majority reasons that the condition is not overbroad. But, as written, the challenged
condition makes filters—unspecified and approved at the discretion of a community
corrections officer—a prerequisite to any Web access. Indeed, the majority admits that
“requiring Johnson to use an overzealous filter might violate the First Amendment [to the
United States Constitution]” yet relegates such concern as a question of “appropriate
enforcement.” Id. at 7.
Of course, the point of a vagueness and overbreadth challenge is to protect against
arbitrary enforcement based on the lack of ascertainable standards for enforcement. E.g.,
State v. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008). The majority’s own
reasoning undermines its conclusion that this condition is not overbroad when it
No. 98493-0
Madsen, J., dissenting
encourages “Johnson’s future community custody officer to have a meaningful
conversation with Johnson about his appropriate Internet use and choose filters that will
accommodate his legitimate needs.” Majority at 6. Surely the constitution requires more
than a “meaningful conversation” between two unequal participants in order to protect
against the overbroad restriction on the First Amendment rights to which Johnson is
entitled.
For the reasons discussed below, I would reverse and remand this case to the trial
court to specify the type of filters appropriate for Johnson’s Web use rather than leaving
it to the discretion of a community custody officer. Accordingly, I dissent.
Analysis
Freedom of speech is an essential right every American citizen enjoys. U.S.
CONST. amend. I. Such a right can be infringed on only by a limitation that is narrowly
tailored to serve a significant government interest. E.g., Packingham v. North Carolina,
___ U.S. ___, 137 S. Ct. 1730, 1736, 198 L. Ed. 2d 273 (2017); Bahl, 164 Wn.2d at 757-
58. However, a defendant’s First Amendment right to free speech may be restricted if
reasonably necessary to accomplish the essential needs of the state and public order, and
is sensitively imposed. Bahl, 164 Wn.2d at 757; State v. Riley, 121 Wn.2d 22, 37, 846
P.2d 1365 (1993) (citing United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir.
1975)). Here, Johnson challenges the community custody condition prohibiting him from
accessing the Web without authorization from his community custody officer as both
unconstitutionally vague and overbroad.
2
No. 98493-0
Madsen, J., dissenting
1. Vagueness
A condition of community custody is unconstitutionally vague if it (1) fails to give
fair warning of what is forbidden or (2) fails to give ascertainable standards that will
prevent arbitrary enforcement. Bahl, 164 Wn.2d at 752-53 (citing City of Spokane v.
Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)). “If ‘persons of ordinary
intelligence can understand what the [law] proscribes, notwithstanding some possible
areas of disagreement, the [law] is sufficiently definite.’” Id. at 754 (alterations in
original) (quoting Douglass, 115 Wn.2d at 179). Where community custody conditions
prohibit material protected by the First Amendment, stricter standards of definiteness are
required. State v. Hai Minh Nguyen, 191 Wn.2d 671, 679, 425 P.3d 847 (2018) (citing
Bahl, 164 Wn.2d at 753).
As to the first prong of the vagueness test, I agree that Johnson’s condition is not
vague because it clearly bans any access to the World Wide Web without authorization
from Johnson’s community custody officer. It is the second prong of the vagueness
inquiry that, in my view, renders this condition vague: the condition does not protect
against arbitrary enforcement because it does not provide ascertainable standards for
enforcement. See Bahl, 164 Wn.2d at 752-53. Indeed, the majority essentially directs a
future custody officer to be reasonable and advises Johnson to speak with that officer so
that filters selected for Johnson’s Web use will not violate his First Amendment rights.
See majority at 6. Such advice is only necessary because there are no ascertainable
standards for enforcement.
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No. 98493-0
Madsen, J., dissenting
A condition of release may be rendered vague when it vests too much discretion in
community corrections officers to engage in arbitrary enforcement. Bahl, 164 Wn.2d at
753. In Bahl, this court stated that a community custody officer who “direct[s] what falls
within the condition only makes the vagueness problem more apparent, since it virtually
acknowledges that on its face it does not provide ascertainable standards for
enforcement.” Id. at 758. Similarly, we should hold that placing the criteria for
enforcement of Johnson’s Web use in the hands of a future custody officer renders this
condition vague.
I am also unconvinced by the majority’s reliance on Johnson’s crimes themselves
and statement of probable cause. Majority at 10. The statement of probable cause recites
the facts that led to Johnson’s arrest, including the role Johnson’s Internet use played. Id.Combined with the challenged community custody condition, the majority holds that
these documents provide “meaningful benchmarks to restrict arbitrary enforcement.” Id.
at 10-11. But reviewing courts do not look to all the surrounding documents to determine
whether a community condition is unconstitutionally vague. Rather, courts examine the
language of the condition itself. E.g., Bahl, 164 Wn.2d at 754 (considering the plain
meaning of terms in a community custody provision). This is so because the vagueness
doctrine mandates that the State provide citizens with fair warning of proscribed conduct.
See State v. Padilla, 190 Wn.2d 672, 681, 416 P.3d 712 (2018). Defendants are not
required to guess what behavior is prohibited. See Douglass, 115 Wn.2d at 179 (noting
that a criminal provision is “‘unconstitutional when it forbids conduct in terms so vague
4
No. 98493-0
Madsen, J., dissenting
that persons of common intelligence must guess at its meaning and differ as to its
application’” (quoting Burien Bark Supply v. King County, 106 Wn.2d 868, 871, 725
P.2d 994 (1986))).
To determine whether citizens have received fair warning of prohibited conduct,
Washington courts have consulted statutory and dictionary definitions of terms within a
custody provision. See, e.g., Bahl, 164 Wn.2d at 759; Nguyen, 191 Wn.2d at 680-81.
Courts have consulted surrounding documents when determining whether a condition is
crime related. See RCW 9.94A.030(10) (defining “crime-related prohibition” as a court
order prohibiting conduct that “directly relates to the circumstances of the crime for
which the offender has been convicted”); State v. Jones, 118 Wn. App. 199, 207-08, 76
P.3d 258 (2003) (striking a custody provision banning consumption of alcohol because
no evidence showed that alcohol contributed to a defendant’s offenses and was thus not
crime related). 1 However, construing the language of a challenged community custody
condition pursuant to a vagueness challenge requires scrutinizing the language itself first
and foremost. Courts may look to the context in order to determine what the provision
means, Bahl, 164 Wn.2d at 754, but in this case the provision is clear—Johnson cannot
know what behavior is prohibited until his community custody officer tells him so.
1
See also State v. Wallmuller, 2015 WL 7259587, at *3 (reviewing declaration of probable cause
to determine whether a custody provision was crime related); State v. Haskins, 2019 WL
6318034, at *2 (same).
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No. 98493-0
Madsen, J., dissenting
Despite upholding the challenged provision and affirming that Johnson will not be
required to guess what behavior is prohibited, the majority cannot remain consistent
because it exhorts the community custody officer to select “appropriate” filters for
Johnson’s Web access—implicitly recognizing that Johnson will have to guess at the
prohibited behavior. The First Amendment offers poor protection indeed if an
individual’s rights depend on the goodwill of probation officers.
2. Overbreadth
A condition is unconstitutionally overbroad if it encompasses conduct that is not
crime related. See State v. Lee, 12 Wn. App. 2d 378, 401, 460 P.3d 701 (2020). Here,
the total ban on Johnson’s access to the Web, subject to exceptions yet to be determined,
also renders the condition overbroad.
The United States Supreme Court opined on the unique interaction between the
Internet and free speech in Packingham. There, the Court reviewed a state law
prohibiting a registered sex offender from accessing “‘a commercial social networking
Web site where the sex offender knows that the site permits minor children to become
members or to create or maintain personal Web pages.’” Packingham, 137 S. Ct. at 1733(quoting N.C. GEN. STAT. ANN. §§ 14-202.5(a), (e) (2009)). The Court held that the
provision violated the First Amendment even though the law exempted websites that
provided only e-mail, chat, or instant messenger services, as well as websites operating
primarily for commercial transactions. Id. at 1734. The Court explained, “A
fundamental principle of the First Amendment is that all persons have access to places
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No. 98493-0
Madsen, J., dissenting
where they can speak and listen, and then, after reflection, speak and listen once more.”
Id. at 1735. The “‘vast democratic forums of the Internet,’” such as social networking
sites, allow users to debate religion and politics, search for employment, and petition the
government directly via elected representatives. Id. (quoting Reno v. Am. Civil Liberties
Union, 521 U.S. 844, 868, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997)). Thus, the Court
warned, judges “must exercise extreme caution before suggesting that the First
Amendment provides scant protection for access to vast networks” online. Id. at 1736.
The majority here emphasizes the nature of Johnson’s crimes and says Johnson
should not be allowed to use the Internet to solicit commercial sex or sex with children.
No one can disagree. But, as the Packingham Court warned when it recognized that child
sexual abuse is a most serious crime and that states may pass laws to protect children,
such laws “must not ‘burden substantially more speech than is necessary’” to further that
legitimate goal. Id. (quoting McCullen v. Coakley, 573 U.S. 464, 486, 134 S. Ct. 2518,
189 L. Ed. 2d 502 (2014)). The same is true here. Just as the Court held that the North
Carolina law was unconstitutionally overbroad because it barred access to “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,” this court should hold that the complete ban on Johnson’s access to the
Web, with undefined exceptions, is also unconstitutional. Id. at 1737. “[T]he State may
not enact this complete bar to the exercise of First Amendment rights on websites integral
to the fabric of our modern society and culture.” Id. at 1738.
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No. 98493-0
Madsen, J., dissenting
The majority rejects Johnson’s argument that Packingham applies because the
community custody condition here is significantly narrower than the unconstitutional
statute at issue in that case. Majority at 7. But there is no way of knowing whether
Johnson’s community custody condition is narrower than the statute in Packingham
because the condition here is a complete ban on Web use subject only to the permission
of a corrections officer, which may be granted under unspecified conditions.
The Third Circuit Court of Appeals recently applied Packingham to invalidate a
condition of release. There, as in this case, the trial court banned the defendant from
using the Internet without his probation officer’s approval and required the defendant to
allow the installation of monitoring and filtering software on his computer. United States
v. Holena, 906 F.3d 288, 290 (3d Cir. 2018). The Court of Appeals reversed, stating,
“The goal of restricting Holena’s internet use is to keep him from preying on children.
The District Court must tailor its restriction to that end.” Id. at 293. Borrowing from the
reasoning in Packingham, the court ruled the trial judge “may not prevent Holena from
doing everyday tasks that have migrated to the internet, like shopping, or searching for
jobs or housing. The same is true for his use of websites conveying essential
information, like news, maps, traffic, or weather.” Id. at 294. “Under Packingham,
blanket internet restrictions will rarely be tailored enough to pass constitutional muster.”
Id. at 295. “Their ‘wide sweep precludes access to a large number of websites that are
most unlikely to facilitate the commission of a sex crime against a child.’” Id. (quoting
Packingham, 137 S. Ct. at 1741 (Alito, J., concurring)).
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No. 98493-0
Madsen, J., dissenting
Important to the present case, the Third Circuit noted that although the condition at
issue permitted Internet use with the probation officer’s prior approval, the condition
“gave the probation office no guidance on the sorts of internet use that it should
approve.” Id. at 293. Similarly here, the blanket prohibition on Web use without prior
authorization of the community custody officer is unconstitutional.
3. State v. Forler
The Court of Appeals in this case acknowledged that Division One recently came
to a different conclusion regarding a similar community custody condition in State v.
Forler, No. 79079-0-I, slip op. at 27-28 (Wash. Ct. App. June 10, 2019) (unpublished),
http://www.courts.wa.gov/opinions/pdf/790790.pdf, review denied, 194 Wn.2d 1011(2019). In Forler, the defendant challenged a condition that precluded “‘internet use
unless authorized by treatment provider and Community Custody Officer.’” Id. at 25.
Forler was convicted of attempted rape of a child by soliciting an undercover officer
through a Craigslist forum. The Court of Appeals concluded that the blanket restriction
of “no internet use” went beyond tailoring Forler’s use to a crime-related prohibition.
Echoing Packingham, the court noted:
Today, internet use is ubiquitous, allowing people to easily accomplish
many daily tasks and functions, including but not limited to: finding a job
or housing, managing banking and investment accounts, paying bills,
receiving directions, listening to music, reading the news, and connecting
with friends and family. The list provided is only a short list of what can be
accomplished using the internet. But none relate to Forler’s conviction.
Furthermore, many devices such as televisions are “smart devices” and
require an internet connection to access their “smart” features. Under the
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Madsen, J., dissenting
broad community custody condition here, Forler would be in violation if he
used a “smart device” that was connected to the internet.
Id. at 27-28.
The court correctly concluded that the condition did not protect against arbitrary
enforcement “because it does not provide ascertainable standards for enforcement” and
fails because it is unconstitutionally overbroad. Id. at 27.
Contrary to the majority’s assertion, the provision here is nearly identical to the
community custody provision in Forler, which stated, “No Internet use unless authorized
by treatment provider and Community Custody Officer.” Id. at 25. The community
custody provision in this case stated Johnson shall “not use or access the World Wide
Web, unless specifically authorized by [his community custody officer] through approved
filters.” Clerk’s Papers at 99; see also majority at 3. Both provisions have the same
overbroad effect.
This court should follow its own precedent, that of the United States Supreme
Court, and the guidance from the Third Circuit to hold that a blanket ban on access to the
World Wide Web, except as permitted by a community custody officer’s discretion, is an
unconstitutional infringement on the First Amendment that far exceeds any crime-related
justification.
I respectfully dissent.
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