Marty E. Whalen Brown*
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Colorado judges have substantial discretion to determine the terms of probation for each offender. Trial courts, however, frequently rely on standard terms and conditions for quicker sentencing, and these forms include a general prohibition against internet access for sex offenders. The Supreme Court recently considered the constitutionality of a ban on social media use by sex offenders in the case Packingham v. North Carolina. This Comment considers whether Colorado’s probation practices are constitutional given the Court’s holdings in Packingham.
Sex offenses come with vastly different penalties compared to other crimes.1 Certain categories of punishments are applied broadly across a range of criminal offenses, irrespective of the specific misdeed or manner in which it was committed, and often prohibit internet use and social media access as standard conditions.2 Some of the punishments limiting social media access go so far as to infringe on the constitutional rights of the offender.3
Sexual offenders are some of the most ostracized and shunned members of our society, as shown by the long and harsh history of condemning them through targeted legislation. 4 However, what society considers to be an offense—or a sexually deviant or immoral act—has drastically changed in the last century.5 Many changes are generally positive, such as protecting the mentally ill, criminalizing marital rape, decriminalizing sodomy, and prosecuting (more) allegations of sexual assault and misconduct.6 Nonetheless, as a result of the complex legislative history of sexual offenses, many substantially lesser crimes are still entangled with the truly heinous and are punished the same simply because they qualify as designated sex crimes.7 Further complicating the issue, states and courts vary significantly in how sex offender laws are crafted and interpreted, particularly with regard to limiting internet and social media access.8In 2017 the Supreme Court unequivocally ruled that North Carolina could not make it a felony offense for a sex offender to use social media after completing a court-imposed sentence because the statutory limitations on speech were not sufficiently narrowly tailored.9 In this case, Packingham v. North Carolina, the Court also reaffirmed that many sexual offenses are particularly troubling, especially those against children.10 Such disconcerting sexual offenses must be weighed heavily when balancing offenders’ rights against society’s safety and when considering necessary legislative and practical changes.11 Each state, however, forms its own criminal statutory laws. Even though Supreme Court rulings are highly persuasive authority, a ruling against one state does not necessarily require other states to modify their criminal laws if there are differences between statutory language and application.12 Nevertheless, Colorado should proactively apply the Supreme Court’s holding in Packingham to Colorado law.
Colorado’s approach to social media use by convicted sex offenders is substantially different from North Carolina’s in terms of codification, duration, and potential punishment for violations.13 This Comment considers the extent to which existing existing Colorado law and policies on internet and social media use by sex offenders fall within the scope of the Supreme Court’s Packingham ruling. In particular, this Comment focuses on the problems associated with defining social media to differentiate web platforms like Facebook from innocuous shopping or news sites.14 Because Colorado sex offender internet policies are inconsistent among counties across the state and incongruous in light of the Packingham decision, they should be updated to better fit current Supreme Court jurisprudence and to better reflect the ubiquity of technology in modern society.15
Part I outlines how Colorado’s probation sentencing practices currently treat social media use for sex offenders. Part II examines the Supreme Court’s decision in Packingham and its findings regarding constitutionally protected free speech expressed through social media. Finally, Part III proposes changes to better align Colorado’s practice with the Court’s holding in Packingham.
I. Colorado Probation Law and Policies
Colorado statutes grant the sentencing judge considerable discretion to determine the terms and conditions of probation.16 Taken together, these statutes provide a sentencing judge with authority to determine and modify the conditions of any individual defendant’s probation term.17 Additionally, offenders convicted of sex crimes in Colorado are more restricted on probation than offenders convicted of other crimes, which is especially troubling given that a sex offender may be on probation for twenty years or more.18 Because of docket pressures and heightened restrictions for sex offenders, courts regularly apply the form Standard Conditions of Probation,19 Additional Conditions of Probation for Adult Sex Offenders,20 and Computer Use Agreement for Sex Offenders21 without modification for judicial efficiency when determining the specific conditions of probation. Importantly, not all of the specific conditions included in these forms are required by Colorado statute—the conditions that are required in a given case depend on an offender’s specific conviction.22 Moreover, many of the provisions can be modified by judicial whim based on the specific facts of the case, evidence presented at the sentencing hearing, the probation officer’s presentence report, and any personal opinions a judge may have on the matter.23 Because trial court judges are often managing an overfull docket, however, the need to move cases through as quickly as possible creates strong reliance on standard conditions of probation for sentencing.24 The standard conditions then allocate substantial discretion to the probation officer to determine specific probation terms, including when a probationer has internet and social media access.25
Colorado’s use of a judicial form, which lays out the conditions used to determine probationary sentencing, allows for the standard conditions to be easily changed and updated as needed; this would not be the case if these conditions were codified in statute, as they are in other jurisdictions. Practically speaking, however, these forms are not substantively updated with any regularity, and the changing pace of technology has quickly left them glaringly outdated.26 For example, the Computer Use Agreement form, last modified in April 2009, refers to the now-obsolete Myspace as the singular example of a social media platform.27 Failing to reflect how society actually uses the internet and technology at a given time diminishes the usefulness and effectiveness of the form. An outdated form for internet use in a society of rapid technological advances and trends does not serve anyone well.
Theoretically, the ability of Colorado judges to use and modify the standard conditions of probation would allow for sentences to match the specific crime and criminogenic needs of a particular defendant, which in turn would reduce recidivism and better support offenders’ rehabilitation.28 This judicial discretion, however, also creates the potential for substantial variation in the terms of probation imposed on offenders with cases that are similar but brought in different Colorado counties or handled by different judges within the same county.29
The default standard probation terms for sex offenders provide blanket prohibitions on both social media access and more general internet use, but with the caveat that the supervising probation officer can allow access as deemed appropriate.30 Again, this allows for unrestricted variation in how individual probationers are treated and ultimately whether they have any social media access at all, regardless of factual dissimilarity between individual cases. Because there is no tracking or other statistical data accounting for how probation departments or individual probation officers treat the issue, the percentage of Colorado probationers who are actually allowed to use social media is unknown. Even more concerning is the fact that the probation officers’ determinations of whether to grant social media access are likely arbitrary and quite possibly inconsistent between cases. Furthermore, there is no statistical information available regarding which specific violations prompt probation revocation hearings, making the actual enforcement of such conditions another unknown variable.31
Additionally, judges are likely ceding too much of their own power to probation supervisors. The Colorado General Assembly grants sentencing judges the authority to determine the terms and conditions of probation through statute. Specifically “the court may grant the defendant probation . . . upon such terms and conditions as it deems best,”32 and the “conditions of probation shall be such as the court in its discretion deems reasonably necessary.” 33The courts lack any statutory authority to further delegate suchpower to the probation department—yet that is precisely what they do.34
In summary, Colorado judges regularly use standard sentencing forms to increase judicial efficiency. These forms assign considerable authority to an offender’s supervising probation officer to determine when and how internet use and social media access is appropriate, which effectively relinquishes much of the statutorily required judicial oversight to the parole officer. The next Section examines the Packingham decision and its implications for Colorado probationary practices.
II. The Packingham Decision and What It Means for Colorado
Only once has the United States Supreme Court addressed whether courts may prohibit social media access for convicted sex offenders: in Packingham.35 In that case, the Court found that a North Carolina statute36—which made a registered sex offender’s use of social media a felony offense—violated the Free Speech Clause of the First Amendment of the United States Constitution.37 This Part will first discuss the North Carolina statute in greater detail, then it will show how the Packingham doctrine differs from Colorado law and policy, and finally it will identify the troubling problem of defining “social media.”
A. Scope of the North Carolina Statute
First and foremost, the Packingham decision affirms that the internet, and notably social media, is a protected forum for free speech.38 Specifically, the Court found that “one of the most important places to exchange views is cyberspace, particularly social media, which offers relatively unlimited low-cost capacity for communication of all kinds to users engaged in a wide array of protected First Amendment activity on any number of diverse topics.”39 The Court has spoken: using social media media is a valid exercise of free speech protected by the First Amendment. Free speech, as exercised through social media, may only be limited to the extent absolutely necessary,40 and such limitations should be “narrowly tailored to serve a significant governmental interest.”41
The Court further emphasized how it had historically sought to protect the fundamental free speech principle of the First Amendment so “that all persons have access to places where they can speak and listen” in a spatial context, such as the proverbial street corner.42 However, the Court also noted that the modern use of technology in society extends this protected spatial area to the “vast democratic forums of the Internet.”43 This is a notable expansion of the traditionally held belief that citizens have a right to free speech in public spaces, and it may have drastic effects on the regulation of internet use and access.44 Prior to the Packingham decision, various state and federal circuit courts differed significantly on whether it was constitutional for states to prohibit use of social media by an offender.45 As a result, the country is peppered with wildly divergent holdings on the issue.46
That said, the Court’s ruling in Packingham is more nuanced than simply holding that a complete ban on social media is an unconstitutional violation of the right to free speech. Part of the Court’s trepidation centers around what, exactly, is prohibited by the statute and how a violation of such a prohibition should be punished.47 The North Carolina statute at issue specifically stated that it is unlawful for a sex offender to access any social networking website where minors are allowed to be members.48 The statute further designated a violation of that prohibition as a new Class I felony offense.49 The Supreme Court was particularly concerned by the length of time that such a ban would be in place under the statute.50
Of critical importance, this statutory ban on using social media creates a completely separate conditional crime from the original court-imposed sentence that applies only after the original sentence has ended.51 The Court found it “unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.”52 Previous rulings by the Court do not show similar concerns over post-sentence regulations that infringe on constitutionally granted rights, such as prohibiting possession of firearms and voting rights for convicted felons.53 Thus, this concern is either a new legal development in how the Court interprets the constitutionality of post-sentence regulating statutes or a statement that the constitutionality of such post-sentence regulations are circumstantially dependent on what is being regulated, for whom, and how.54
Finally, the Court focused on the problems created by the punishment provisions in the statute, under which a violation of the statutorily imposed post-sentence ban on social media use resulted in an additional felony charge against the offender/defendant.55 The Court noted in Packingham that the State never alleged that the defendant had committed a new crime or illicit act on the internet. The only crime was violating the statute prohibiting social media use after having a previous sex-offense conviction.56 Here, the defendant had posted a status update on his personal Facebook page regarding the dismissal of charges from a speeding ticket.57 Because the defendant had a previous sex-offense conviction, the statute prohibited his using Facebook; consequently his status update became a convictable crime.58 The Court found the combination of what the North Carolina statute prohibited, when it applied, and the resulting punishment of a new felony conviction to be “a prohibition unprecedented in the scope of First Amendment speech it burdens.”59
Other states and judges will undoubtedly attempt to follow this precedent dutifully,60 and Colorado should do the same.61 Evaluating Colorado law under the Packingham decision is complicated, however, due to the substantive differences in how Colorado’s law and policy are applied to the prohibition on social media use for convicted sex offenders. Although not per se unconstitutional, Colorado’s statute may still fall within the Packingham rubric and thus may be unconstitutional—and, as a precaution, Colorado should reform its laws and policies to be able to survive a constitutional challenge under the Packingham precedent.
B. Packingham to Colorado
Colorado law, which imposes social media limitations only as a condition of probation, no longer regulates internet or social media access once the terms of probation are completed.62 This is an important difference from the North Carolina statute’s application, which continued to run even after the defendant had already served the court-imposed sentence and was no longer incarcerated or under the court’s supervision.
Additionally, the penalty for violating the prohibition against social media access differs substantially between Colorado and North Carolina. In Colorado, the social media prohibition is only a condition of probation imposed by the courts, and failing to follow that condition would only be a violation of probation.63 The legal ramifications under Colorado law are limited to a revocation of probation, which would potentially subject an offender to the original sentence faced in court but, importantly, not to any new criminal charges.64 Moreover, this consequence is no different than any other probation violation.65 Probation violations and revocation for sex offenders are not distinguished from other classes of offenders, an ironic twist in the criminal justice system so heavily stacked against offenders once convicted.66
Colorado’s lack of codification and uniform application of these conditions makes it difficult to explicitly label such prohibitions of social media as fundamentally unconstitutional because the state does not inflexibly bar access. Regardless of Colorado’s methodology and whether the Supreme Court could rule it unconstitutional, however, protecting the constitutional rights of an offender while also protecting potential victims is still a worthy ambition for the state to pursue. Balancing these protections is a challenge for the legislature.67 Even if it may pass the Packingham standard, Colorado still risks unconstitutionally burdening free speech because of the state’s inconsistence sentencing regime and the legislature’s imperfect definition of “social media.” The next Section will focus on how courts and legislators struggle to articulate how to define social media.
C. Defining Social Media
The North Carolina statute reviewed in Packingham defined a “commercial social networking Web site” broadly.68 In contrast, the Colorado statute does not define social networking websites at all. The North Carolina statute stated that a social networking site must: (1) generate revenue, (2) facilitate social interactions between members, (3) allow users to create personal profiles, and (4) provide mechanisms for communication with others.69 Justice Alito went to great lengths in the Packingham opinion to illustrate how the language in the North Carolina statute encompassed such innocuous websites as Amazon, The Washington Post, and WebMD.70 Notably, the Court concluded that the statute’s overly broad definition included websites that would be reasonable, appropriate, and even necessary for a sex offender to use. 71
As a policy concern, the Court also detailed how these extraneous websites, though falling under the broad definition of social media, simply could not facilitate the type of crime the legislature sought to prevent, such as directly contacting children or otherwise identifying potential victims of future crimes.72 If the policy goals behind such a prohibition are not being fulfilled, the importance of imposing such a long-lasting prohibition after the completion of a criminal sentence quickly diminishes.73 The Court further acknowledged that convicted criminals “might receive legitimate benefits from these means for access to the world of ideas” and that offenders would potentially need social networking access as much or even more than the average citizen.74
Ultimately, the Court found that the statute’s definition of prohibited social media websites was vastly overreaching.75 Namely, “[t]he fatal problem for [the North Carolina statute] is that its 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.”76 In addition to being a violation of the Free Speech Clause, the Court found that the statute “does not appreciably advance the State’s goal of protecting children from recidivist sex offenders” by placing these websites categorically off limits.77
Colorado faces the same problems as North Carolina for creating an appropriate definition of social media that will reasonably limit the use of websites like Facebook but not those like WebMD. Listing websites by name is only sufficient until there is a new trending website or some other technological advance that was previously inconceivable.78 “The Internet’s forces and directions are so new, so protean, and so far reaching that courts must be conscious that what they say today may be obsolete tomorrow.”79
Thus far Colorado has, intentionally or unintentionally, managed to avoid statutorily defining “social media” for sex offenses. Colorado does attempt to provide a definition of “social networking forum” on the form Additional Conditions of Probation for Adult Sex Offenders.80 Unfortunately, this definition is broad, is focused on real-time interactions with others, and also likely includes numerous websites beyond Twitter, Instagram, or Facebook.81 Again, the Packingham Court’s concern that broadly prohibiting social media so as to ban nearly every major web platform will fail to support the purpose behind such prohibitions rings true. As the Court noted, such restrictions on the Free Speech Clause must serve a legitimate government interest, but also “must not burden substantially more speech than is necessary” to achieve this interest.82 The government’s interest in protecting minors from sex offenders is praiseworthy and potentially sufficient to justify prohibiting their use of Facebook or Instagram.83 But the government has significantly less interest in limiting sex offenders’ use of Amazon to purchase a bargain-priced Instant Pot.84
Ultimately, defining social media is an issue of scope: how can states address the legitimate governmental interests in limiting social media access for sex offenders with a broad enough definition to cover the trending social media platforms of tomorrow, while not including shopping and news outlets? It is important to remember that the Court did not hold that any restriction on social media use would be categorically impermissible, but rather that the specific restrictions in the North Carolina statute were problematic.85 Indeed, the Court affirmed 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.”86 Thus, it is critically important to carefully consider the precise language and application of the North Carolina statute as well as how other states and circuits are addressing these widespread issues.
The key distinctions between the Colorado and North Carolina laws are: (1) the lack of codification of the social media prohibition, (2) the time when the prohibition against social media use applies, and (3) the punishment being a probation revocation. Colorado faces the same challenge as North Carolina, however, in defining social media to categorically include intended websites like Facebook and categorically exclude the innocuous ones like Amazon. Colorado should strive to update its existing laws and practices to better address the concerns raised by the Court in Packingham and protect citizens’ First Amendment rights.
III. Changes to Consider for Colorado Law
The Court’s holding in Packingham triggers a responsibility for states to critically appraise their own limitations on social media use for sex offenders. This Part first argues that Colorado should reevaluate its public policy concerns underlying these procedures, and then proposes modifications for the state to consider. Colorado would be well served if it modified the “sex offender” designation to better reflect different levels of offenses and applied standardized probation terms determining social media access for each level.
A. Public Policy Concerns
Colorado should consider whether limitations on social media actually serve public policy goals and, if not, make changes accordingly. People strongly dislike sex-offender crimes, especially when committed towards children, and want to feel that their communities are being protected from reoffending perpetrators.87 Thus it is easy to see how broad laws prohibiting use of the internet and social media—especially laws that target websites where minors can have accounts—are seen as necessary to adequately protect the community. In addition to including innocuous websites, however, this expansive approach also encompasses an overly broad swath of offenders.
Without a doubt, sex offenders have relied upon social media to commit abhorrent crimes against children and other vulnerable individuals, and access to these internet platforms should be severely limited for such offenders.88 Many other sex offenders, however, have committed much less serious crimes with little or no reliance on the internet.89 As a society, the need to protect the population from genuinely heinous acts must also be balanced with the rights and personal integrity of the offender.90
Sex offenders vary in the execution of their crimes, using different methods to interact with the victim and commit the actual crime,91 which presents additional challenges for effectively reducing recidivism with social media bans. How an individual offender used social media in the original crime, or how he would be likely to use social media in a future crime, is highly offender dependent, which is distinct from social media use being crime dependent. To clarify, the likelihood of an offender using social media to commit a future act is a separate consideration from whether the original crime was committed through social media.92 Some methods of victim selection93 lend themselves much more to using social media than others, and the propensity for recidivism is significantly influenced by non-crime-specific factors such as the offender’s home environment and community support.94
Arrests for sex crimes over the past two decades have steadily decreased even as changes in technology have made it easier and easier for sex offenders to identify and access victims online.95 Yet while arrests have declined, “public concern has risen.”96 Appropriately addressing such concerns is undeniably important, but the judicial branch may be severely handicapped in making actual changes if public concern is not grounded in reality. Further public education may be needed to change the societal narrative about such crimes. As discussed above, Colorado’s statutorily stated purpose with respect to sentencing is all-encompassing but, importantly, includes both “to punish” and “to promote rehabilitation.” 97 These simultaneous goals are critical when considering what changes should be made to Colorado law.
B. Implementations for Colorado
Colorado should revise how sex offenses are designated to better differentiate between the wide array of crimes that are currently included under the broad “sex offender” label. Having different levels of sex offenses would allow offenders who do not commit crimes against children or crimes that are not otherwise particularly egregious—offenses that are not predatory or have a low likelihood of reoffending—to still have a Facebook account. Once different categories of sex offenses are established, corresponding appropriate standard conditions of probation could be instituted for each. Limitations on internet and social media use could be directly correlated to the specific type of crime committed and the criminal methodology used by the specific offender, which would ultimately allow low-risk offenders to keep their internet access as the default condition. Because Colorado already distinguishes different crimes and sentencing guidelines, fine-tuning the sex offender category should be a feasible next step.
Sorting sex offenses into specific categories would also lead to more uniformity between judges and across county lines for similarly situated sex offenders. The Legislature has designated categories of crimes by state-wide statute, and the judiciary should strive to apply punishments for each category as consistently and predictably as possible. Finally, creating levels of sex offender crimes, and subsequent conditions of probation based upon those levels, reduces some of the unbridled discretion currently vested in probation supervisors and returns it to judges, while keeping probation sentencing efficient to support the time-strapped judges.
Colorado courts have substantial discretion to determine the terms and conditions of probation for each offender.98 However, the courts often rely on the form Conditions of Probation and Additional Conditions of Probation for Adult Sex Offenders, deferring to the probation officer to determine a particular offender’s social media and internet access.99 This lack of codification of the terms of probation and the fact that such terms only apply during supervisory probation distinguishes Colorado policy from the North Carolina statute at issue in Packingham.100 That said, the existing Colorado methods do not serve public policy concerns particularly well because of the vast range of offenses that qualify as “sex offender” crimes and the discrepancies among imposed sentences.101 The current Colorado system also does not seem to follow the spirit of the Packingham decision and similarly struggles to define “social media” as North Carolina.102 The citizens of Colorado would be better served if the legislature separated different sex offenses into separate categories based on crime methodology and victim, where each category has a different default standard for whether social media use is allowed. Such categorization of sex offenses would also help judges and probation offices across the state follow more consistent sentencing practices, with better, more narrowly tailored definitions for prohibited websites.
*Juris Doctor, 2019, University of Colorado Law School; Casenote & Comment Editor, University of Colorado Law Review, Volume 90. I want to recognize and thank my editors Erica Lieber, Jonathan McGuire, and Hannah Armentrout for all the support and help they provided me throughout this process. I would also like to thank Professor Amy Griffin for her invaluable guidance and encouragement. Finally, I want to thank my husband, Wes, for believing in me throughout law school and especially for cooking me dinner every night. And to my daughters, Kristina and Adrianna, I’m sorry for how many weekends I spent ignoring you to work on this piece; I love you both.