It does not violate the First Amendment for a court to impose broad restrictions on a sex offender’s use of the Internet and social media during his sentence, the Court of Appeals decided on Thursday.
A three-judge appellate panel rejected the claims of Christopher David Landis that such limitations violated Colorado law, as well as federal and state constitutional protections on free speech.
“While we fully acknowledge that, to date, the internet has become one of the most important places, if not the most important place, for people to exchange views and ideas, under the circumstances here, we disagree with both of Landis’s contentions,” wrote Judge Janice B. Davidson in the panel’s opinion.
Landis pleaded guilty in 2017 to touching a 10-year-old girl’s genitals, and received a seven-year sentence of sex offender intensive supervised probation. He disagreed, however, with the condition that he receive approval from his community supervision team to use the Internet and social media. Landis argued he needed to use the Internet for his job.
Mesa County District Court Judge Valerie J. Robison modified the prohibition to make an exception for his employment, but still allowed Landis’ probation officer to conduct searches of the computer used for his job. Landis appealed, arguing the conditions did not have a reasonable connection to his rehabilitation.
Although trial courts have broad discretion to impose probationary conditions, they must be related to the offense and cannot be unnecessarily severe or restrictive. Deputy State Public Defender Jeanne Segil told the appellate panel during oral arguments last year that such a broad curtailment of her client's online activity — including through apps and smart phones and streaming devices — had no bearing on his original crime.
“Yes, Mr. Landis can access the Internet in the terms of his employment. However, we all have lives outside of our employment," she told the panel. “While Mr. Landis can reenter society when he goes to work, as soon as he leaves, he’s ostracized.”
Judge Craig R. Welling appeared sympathetic to that argument, as he pressed the government to justify the purpose of the "broadest possible ban that you could impose."
"There’s no need to stop him from paying his Xcel bill on his home computer," Welling observed. “Why couldn’t these terms and conditions be more constrained? More targeted toward protecting public safety?”
Landis could challenge the condition in front of the trial court, responded Assistant Attorney General Gabriel P. Olivares. The community supervision team of Landis' probation officer, treatment provider and polygraph examiner could also take Landis's specific circumstances into consideration, although Olivares acknowledged it may be unreasonable to maintain the total restriction.
Ultimately, the appellate judges decided probation inherently involves restrictions on a defendant's liberty.
“To be sure, Landis did not use the internet in attempting to sexually assault” the victim, wrote Davidson, a retired judge who had replaced Welling on the panel by the time the opinion was issued. “However, he engaged in sexual conduct with a child, and it was reasonable to place restrictions on Landis’s use of a medium that easily can be used to facilitate contact with children.”
The court decided the restrictions were not disproportionately severe, given the exception for his employment and the fact that he “may still communicate in person, communicate over the telephone, receive news from television and newspapers, and write to his government representatives.”
In arguing that the conditions on his Internet usage violated the First Amendment, Landis cited the 2017 U.S. Supreme Court decision in Packingham v. North Carolina. In that case, the justices determined a North Carolina law prohibiting registered sex offenders from accessing social media sites where children are known to have accounts was unconstitutional.
But the Court of Appeals declined to use the Packingham case as a reference because the defendant there had already served his sentence, in contrast to Landis. Taken as a whole, the restrictions on Landis served a legitimate governmental interest of protecting children from a sex offender still serving his sentence, the judges concluded.
In response to the ruling, Sandy Rozek, communications director for the National Association for Rational Sex Offense Laws, questioned whether there were any data supporting the notion that a person would reoffend using the Internet even if they had not committed the original offense with a computer.
"It reminds me of a joke about a game warden who was going to give a ticket for fishing without a license to a woman who was sitting in her husband's boat, tied to the dock, reading a book," Rozek described. "She said she wasn't fishing. He said, 'Boat, rods, bait; you've got all the equipment here and could start fishing any minute.' She then informed him she would be charging him with rape. When he protested that he hadn't touched her, she said, 'Yeah, but you've got all the equipment. How do I know you wouldn't start any minute?'"
The case is People v. Landis.