Restrictions on Parolees’ Social Media Access Are Constitutional, Court Says

Federal law and the laws of most states allow for the release of an individual from incarceration before they have served their full term of imprisonment under many circumstances. Known as parole, this type of release requires a person to comply with various restrictions. The nature and extent of these restrictions are the subject of constant dispute by parolees. A recent appellate court decision, J.B. v. New Jersey State Parole Board, addressed whether parole conditions prohibiting several individuals from using social media violated their constitutional rights. The case is one of the first to involve this issue. Citing the parolees’ status as registered sex offenders, the court ruled that no constitutional violations occurred, but it allowed for the possibility of more specific challenges in the future.

A term of confinement in a jail or prison is one possible outcome of a criminal case. It may be most likely to occur if a judge or jury convicts a defendant after a trial, but a defendant may agree to a prison term as part of a plea agreement, often in order to avoid the risk of a longer term. All four of the individuals challenging the social media ban in the J.B. case pleaded guilty and were sentenced to prison terms ranging from three years to twenty-five years. Upon their release, they were all required to register as sex offenders, and the state parole board prohibited them from accessing social media websites or services.

The four individuals appealed the parole board’s rulings, claiming in part that the social media ban violated their First Amendment rights to freedom of speech and association and their rights under the Due Process Clause. The court rejected the facial challenges to the social media ban, citing the “special characteristics of sex offenders” under state law. The state may impose reasonable and necessary restrictions on individuals as a condition of parole, and the court noted that state law specifically allowed restrictions on computer use in circumstances matching those of the appellants. N.J. Rev. Stat. § 2C:43-6.4(f). The court added that it might consider more specific challenges to social media restrictions as they are applied, but it found them to be constitutional as a general matter.

The court’s analysis dealt specifically with individuals convicted of offenses requiring registration as a sex offender. For other offenses, parole conditions are less likely to include such broad restrictions on computer use, but the extent of any set of restrictions will depend on individual circumstances. Texas courts do not appear to have considered such a broad challenge to social media bans yet, but the issue did appear in Little v. State, 376 S.W.3d 217, 220 (Tex. App.–Forth Worth 2012). The Court of Appeals expressed concern that a trial court attached “sex-offender conditions” to a defendant’s probation, including social media restrictions, without a hearing, but it declined to vacate the trial court’s order on procedural grounds. Texas has a statute similar to New Jersey’s that allows prohibitions on social media access for sex offenders. Tex. Code Crim. P. § 42.12(13G)(b)(2).

Michael J. Brown is a board-certified criminal defense attorney who has fought for the rights of west Texas defendants in criminal cases for more than twenty years, drawing on his experience as an FBI agent and a federal prosecutor. To schedule a confidential consultation regarding your legal matter, contact us today online or at (432) 687-5157.

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