A restriction that prohibited a parolee from possessing or having contacts with a computer or other device with internet access violates the First Amendment, the West Virginia Supreme Court has ruled in Mutter v. Ross.
Bobby Ross sexually assaulted a female in 1987. He received a lengthy prison sentence and the state released him on parole in May 2014. A special condition of his parole prohibited him from “possess[ing] or hav[ing] contact with any computer, electronic device, communication device or any device which is enabled with internet access.” Thus, the condition prohibited Mr. Ross from owning a smartphone, checking the Internet for job ads, or other innocent activity that involved the use of a computer.
A parole officer noticed that Ross’ girlfriend owned a computer. Because Ross lived with his girlfriend, the parole officer believed that Ross violated his parole and started proceedings that led him to be placed back into prison. For his part, Ross and his girlfriend testified that Ross did not use the computer.
Ross challenged his parole revocation on several grounds, including a First Amendment argument. Ross contended that the special parole restriction violated the First Amendment based on the U.S. Supreme Court’s decision in Packingham v. North Carolina (2017). In Packingham, the Court struck down as overbroad a state law that prohibited sex offenders from accessing social media sites likely to be used by minors.
“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,” the Court wrote.
The West Virginia Supreme Court reasoned that Ross’special parole restriction was even broader than the North Carolina law invalidated in Packingham.
“The First Amendment protects a person’s access to the Internet,” the West Virginia high court wrote.“The special condition of Mr. Ross’s parole restricted more First Amendment activity than was necessary to protect anyone from misconduct that is a consequence of internet use.”
The court explained that he could not receive an e-mail from an employer, pay a bill online, check the weather online, or even use a smartphone.
The state had argued that Ross as a parolee simply had virtually no constitutional rights. The state high court rejected this argument, noting that Ross’s underlying criminal offense did not even involve the use of the internet or a computer.
“The special condition of parole is clearly unconstitutional in light of the Supreme Court’s ruling in Packingham,” the state high court wrote.
The West Virginia Supreme Court’s ruling is rooted in common sense. The parole restriction was way too broad and did not comply with U.S. Supreme Court precedent.