University of Colorado Law Review > Digital > Banning Facebook: Sex Offenders, Probation, and Social Media Under Colorado Law

Banning Facebook: Sex Offenders, Probation, and Social Media Under Colorado Law

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.

Introduction

Sex offenses come with vastly different penalties compared to other crimes. 1Eric Beauregard & Roxanne Lieb, Sex Offenders and Sex Offender Policy, in Crime and Public Policy 345 (James Q. Wilson & Joan Petersilia eds., 2011) (“Sex offenders are treated as exceptions in the criminal justice systems of virtually every state in the United States . . . .”); see also Colo. Rev. Stat. § 18-3-414.5 (2018).Many sex offender crimes include registration requirements under Colo. Rev. Stat. § 16-22-108 (2018) well after the completion of the original sentence). 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.2Beauregard & Lieb, supra note 1, at 345 (“Numerous policies and laws unique to sex offenders cover all aspects of the criminal justice system, including pre- and post-sentencing policies, civil commitment for sexually violent predators, and post-release controls such as registration and community notification.”); Robin Miller, Validity of Condition of Probation, Supervised Release, or Parole Restricting Computer Use or Internet Access, 4 A.L.R. 6th 1 (2005). Some of the punishments limiting social media ac­cess go so far as to infringe on the constitutional rights of the offender.3See, e.g.,Packingham v. North Carolina, 137 S. Ct. 1730, 1732 (2017).

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.4Michael L. Perlin & Heather Ellis Cucolo, Shaming the Constitution: The Detrimental Results of Sexual Violent Predator Legislation 18 (2017).  However, what society considers to be an offense—or a sexually deviant or immoral act—has drastically changed in the last century.5Beauregard & Lieb, supra note 1, at 345 (“The practice of distinguishing sex offenders in the United States can be traced back over 70 years. In the most recent decade, this tide of exceptionalism has risen dramatically.” (citations omitted)); Perlin & Cucolo, supra note 4, at 17. 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.6Francis P. Reddington, A Brief History of Rape Law and Rape Law Reform in the United States, in Sexual Assault: The Victims, the Perpetrators, and the Criminal Justice System 381, 389 (Frances P. Reddington & Betsy Wright Kreisel eds., 3d ed. 2017). 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. Crimes that would be considered “sex crimes” because they include a corollary requirement of sex offender registration under Colorado statute include such offenses (and variations of attempt, solicitation, and conspiracy for each) as Indecent Exposure, Colo. Rev. Stat. §§ 16-22-102(9)–113 (2018), Invasion of Privacy for Sexual Gratification, § 18-3-405.6, Incest, § 18-6-301, and Public Indecency, § 18-7-302. These specific crimes, as defined under Colorado statute, are not crimes committed against children, through social media, or necessarily even without a consenting partner. (To be clear, the statutory crimes selected here are ones only committed against adults. By definition, there are separate statutes for when these offenses are committed against children.) In People v. Graves, for example, the defendant was arrested for “lewd fondling or caress” in violation of Colorado’s public indecency statute for stroking another man’s erect penis through the man’s pants at an adult movie theater.7368 P.3d 317, 320–21 (Colo. 2016). Additionally, public indecency includes such things as “an act of sexual intercourse” performed “in a public place” and “exposure of the person’s genitals . . . under circumstances in which such conduct is likely to cause affront or alarm to the other person.”8§ 18-7-301(1)(d).  Under this statute, a romantic night on the beach with a long-term consenting partner or drunkenly urinating behind a dumpster outside the local bar could both qualify as sex crimes if witnessed and prosecuted. 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.9Miller, supra note 2 (stating that each state sets its own statutes regarding what specifically is criminalized as a sex crime, in addition to each state judge having varying amounts of discretion regarding sentencing of those crimes). In 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.10Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (“Even making the assumption that the [North Carolina] statute is content neutral and thus subject to intermediate scrutiny, the provision cannot stand.”). In this case, Packingham v. North Carolina, the Court also reaffirmed that many sexual offenses are partic­ularly troubling, especially those against children.11Id. at 1736 (citing Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002)) (“[T]he sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.”). Such discon­certing sexual offenses must be weighed heavily when balancing offenders’ rights against society’s safety and when considering necessary legislative and practical changes.12Greg Berman & Aubrey Fox, Trial & Error in Criminal Justice Reform: Learning from Failure 115–23 (2010). 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.13Barbara Bintliff, Mandatory v. Persuasive Cases, in Perspectives: Teaching Legal Research and Writing 83 (Winter 2001). 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. 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.14E.g., Packingham, 137 S. Ct. 1730. 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.15See infra note 71.

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.16Colo. Rev. Stat. § 18-1.3-202(1) (2018); § 18-1.3-204(1)(a); § 18-1.3-204(2)(a)(XV). Taken together, these statutes provide a sentencing judge with authority to determine and modify the conditions of any indi­vidual defendant’s probation term.17§ 18-1.3-202(1)(a) (“When it appears to the satisfaction of the court that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, the court may grant the defendant probation for such period and upon such terms and conditions as it deems best.”); § 18-1.3-204(1)(a) (“The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life and to assist the defendant in doing so.”); § 18-1.3-204(2)(a) (“When granting probation, the court may, as a condition of probation, require that the defendant: . . . [s]atisfy any other conditions reasonably related to the defendant’s rehabilitation and the purposes of probation.”). 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§ 18-1.3-1008(2) (“On completion of twenty years of probation for any sex offender convicted of a class 2 or 3 felony or on completion of ten years of probation for any sex offender convicted of a class 4 felony, the court shall schedule a review hearing to determine whether the sex offender should be discharged from probation.”). Because of docket pressures and heightened restrictions for sex offenders, courts regularly apply the form Standard Conditions of Probation,19Colo. Judicial Dep’t, Form No. 261 R7/16, Adult Conditions of Probation (2013), https://cdpsdocs.state.co.us/ccjj/Meetings/2014/2014-04-11_CCJJ_JDF261-AdultConditions-Probation_Rev0913.pdf [https://perma.cc/4REL-4HXV]. Additional Conditions of Probation for Adult Sex Offenders,20These forms are created, updated, and maintained by the Colorado Judicial Department for use in Colorado courts. The forms have numerous provisions, including some required by various sex-offender statutes as well as others that are purely up to judicial discretion, such as internet access. The versions of these forms available online are outdated; the R7/16 and R1/17 versions referenced in this Comment were obtained directly from the Colorado judicial branch and have some variations compared to those forms linked within this Comment. and Com­puter Use Agreement for Sex Offenders21See infra Appendix A. 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.22Hernandez v. People, 176 P.3d 746, 752 (Colo. 2008). 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.23Gerhard Falk, The American Criminal Justice System: How it Works, How it Doesn’t, and How to Fix It 175 (2010). 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.24Colorado Judicial Branch, Colorado Courts at a Glance (Dec. 2006), http://www2.cde.state.co.us/artemis/scserials/sc216internet/sc2162006 internet.pdf [https://perma.cc/W9W4-W4B7] (“Judges do their best to move cases through their courts as fast as possible while still making certain that everyone has a fair hearing. The sheer number of cases sometimes makes this difficult.”). 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.25Falk, supra note 23, at 175 (“The fact is that judges have no more information concerning an accused or convicted citizen than that which probation officers provide. . . . Generally, judges rely on the probation officer’s report and recommendation as to imprisonment or release on the probationer’s own recognizance. . . . When the judge imposes certain conditions to be obeyed by the probationer, the probation officer can decide which violations to report to the court. Thus, probation officers have a great deal of discretion concerning which conditions to [recommend and] enforce.”).

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.26See Colorado Judicial Branch’s Forms & Instructions by Category, Colo. Judicial Branch, https://www.courts.state.co.us/Forms/Index.cfm (last visited Sept. 29, 2018) [https://perma.cc/37CH-EGPL]. 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.27See infra Appendix A; see also Shannon Greenwood, Andrew Perrin & Maeve Duggan, Social Media Update 2016, Pew Research Ctr. (Nov. 11, 2016), http://www.pewinternet.org/2016/11/11/social-media-update-2016/ [https://perma.cc/QF75-5UWU] (asserting that Facebook remains the most popular social media platform for the period of 2012–2016 by a significant margin, while Myspace was not even included in the data collected for social media platforms (Facebook, Instagram, Pinterest, LinkedIn, and Twitter)); see also Alice Gilder, Exactly How Dead Is MySpace, Giraffe Social Media, https://www. giraffesocialmedia.co.uk/exactly-how-dead-is-myspace/ (last updated Jan. 2016) [https://perma.cc/4E8X-QL7S] (“Saying Myspace is dead may be a little harsh—deserted could be fairer. But where did we all go to? Well, the short answer to that question is Facebook and Twitter . . . .”). 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.28See Joan Petersilia, Reforming Probation and Parole in the 21st Century 65–68 (2002); see also Gary King, District Attorney, et al., Presentation at the ICCA Conference: Evidence Based Decision Making from Principle to Practice (Sept. 2013), https://info.nicic.gov/nicrp/system/files/028172.pdf [https://perma.cc/8JNL-X4W3] (“Criminogenic needs are dynamic (changeable) risk factors that are proven through research to affect recidivism.”).  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.29Compare People v. Gagnon, 997 P.2d 1278, 1280 (Colo. App. 1999) (The defendant was convicted in Douglas County District Court of felony sexual exploitation of a child and misdemeanor sexual exploitation of a child for presenting himself as a photographer and taking pictures of a sixteen-year-old with her blouse unbuttoned exposing the sides of her breasts. The defendant was sentenced to twelve years’ imprisonment for the felony and a concurrent three-year sentence for the misdemeanor), with People v. Grady, 126 P.3d 219, 219–20 (Colo. App. 2005) (The defendant was charged with thirty-nine counts of sexual exploitation of a child in Arapahoe County District Court based on “glamor shot” photographs of thirteen- to seventeen-year-olds seized in a search of his photography studio and on photographs appearing on his website, True Teen Babes. The defendant was acquitted of all charges (and served no time) after the trial court ruled to limit the sexual gratification element of the offense so that it referred to just the individual gratification of the defendant and not to that of any and all viewers generally).

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.30Additional Conditions of Probation for Sex Offenders, supra note 20 (providing the following conditions in regard to social media: “22. You shall not be allowed to subscribe to any internet service provider, by modem, LAN, DSL or any other avenue (to include, but not limited to, satellite dishes, PDAs, electronic games, web televisions, internet appliances and cellular/digital telephones) and shall not be allowed to use another person’s internet or use the internet through any venue until approved by the supervision team. When access has been approved, you agree to sign, and comply with, the conditions of the ‘Computer Use Agreement’—JDF 321P. Additionally, you will allow your probation officer, or other person trained, to conduct searches of computers or other electronic devices used by you. The person conducting the search may include a non-judicial employee and you may be required to pay for such a search. . . . 28. You shall not utilize, by any means, any social networking forums offering an interactive, user-submitted network of friends, personal profiles, blogs, chat rooms or other environment which allows for real-time interaction with others, except under circumstances approved in advance and in writing by the probation officer in consultation with the community supervision team.” (emphasis added)). 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.31See infra Section III.A for a more in-depth discussion of public policy, but as a general note, having a standard condition of probation that is truly not being enforced is probably not a great practice for Colorado. 

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 Colo. Rev. Stat. § 18-1.3-202 (2018). [/expand][/ref] and the “conditions of probation shall be such as the court in its discretion deems rea­sonably necessary.” The courts lack any statutory authority to further delegate suchpower to the probation department—yet that is precisely what they do.33§ 18-1.3-202(2) (“The probation department in each judicial district may enter into agreements with any state agency or other public agency, any corporation, and any private agency or person to provide supervision or other services for defendants placed on probation by the court.”).

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.34Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (“This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet.”). In that case, the Court found that a North Carolina statute35N.C. Gen. Stat. § 14-202.5 (2017). —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.36 Packingham, 137 S. Ct. at1730, 1732 (“Two assumptions are made in resolving this case. First, while the Court need not decide the statute’s precise scope, it is enough to assume that the law applies to commonplace social networking sites like Facebook, LinkedIn, and Twitter. Second, the Court assumes 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. Even with these assumptions, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.” (emphasis added)). 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.37 Id. at 1737 (“In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”). 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.”38 Id. at 1732 (internal quotations omitted) (quoting Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997)). 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,39Id. at 1736 (“[T]he law must not burden substantially more speech than is necessary to further the government’s legitimate interests.” (internal quotations omitted)). and such limitations should be “narrowly tailored to serve a signifi­cant governmental interest.”40 McCullen v. Coakley, 134 S. Ct. 2518, 2534 (2014).

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.41 Packingham, 137 S. Ct. at 1735. 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.”42 Id. at 1735 (quoting Reno, 521 U.S. at 868). 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.43Id. at 1743 (Alito, J., concurring) (“I am troubled by the Court’s loose rhetoric. . . . [I]f the entirety of the internet or even just ‘social media’ sites are the 21st century equivalent of public streets and parks, then States may have little ability to restrict the sites that may be visited by even the most dangerous sex offenders.”). 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.44 Miller, supra note 2. As a result, the country is peppered with wildly divergent holdings on the issue.45 Packingham, 137 S. Ct. 1730, see also Miller, supra note 2. Compare United States v. Locke, 482 F.3d 764 (5th Cir. 2007) (holding that a probation condition prohibiting access to the internet did not violate the First Amendment), with United States v. Heckman, 592 F.3d 400 (3d Cir. 2010) (holding that a condition of supervised release prohibiting a defendant from access to any internet service provider or other computer network was too broad); compare also Bratcher v. State, 999 N.E.2d 864 (Ind. Ct. App. 2013) (holding that a condition of probation limiting or restricting a defendant’s internet usage did not violate his free speech rights), with Waters v. State, 65 N.E.3d 613 (Ind. Ct. App. 2016) (holding that a probation condition that prohibited a defendant from accessing the internet without prior approval of his probation officer was overly broad).

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.46 See Packingham, 137 S. Ct. at 1737. 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.47N.C. Gen. Stat. § 14-202.5(a) (2017) (“It is unlawful for a sex offender who is registered in accordance with Article 27A of Chapter 14 of the General Statutes to access 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 on the commercial social networking Web site.”). The statute further designated a violation of that prohibition as a new Class I felony offense.48 § 14-202.5(e). The Supreme Court was particularly concerned by the length of time that such a ban would be in place under the statute.49 Article 27A of Chapter 14 of the North Carolina Statutes as referenced under § 14-202.5(a) states, in relevant part, that the registration requirement qualifying a defendant as a sex offender under §14-202.5 stays in place for 30 years. Additionally, N.C. Gen. Stat. § 14–208.6A (2017) states that “[i]t is the objective of the General Assembly to establish a 30-year registration requirement for persons convicted of certain offenses against minors or sexually violent offenses.”

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.50§ 14-202.5(a). 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.”51 Packingham, 137 S. Ct. at 1737. 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.52 See, e.g., 18 U.S.C. § 922 (2012) (“It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such a person— (1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . .”); Johnson v. United States, 135 S. Ct. 2551 (2015) (describing § 922); see also Robin Miller, Annotation, Validity, Construction, and Application of State Criminal Disenfranchisement Provisions, 10 A.L.R. 6th 31 (2006); Felony Disenfranchisement, Wikipedia, https://en.wikipedia.org/wiki/
Felony_disenfranchisement (last visited Oct. 29, 2018) [https://perma.cc/X2PG-5HC4].
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.53 The Supreme Court has not overruled state statues that ban convicted felons from voting; nor has it overruled the corresponding implication that voting rights receive fewer constitutional protections than the right to use the internet. See Felon Voting Rights, Nat’l Conf. St. Legislatures (Dec. 21, 2018), http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx [https://perma.cc/JGZ8-AJD8] (“In 13 states felons lose their voting rights indefinitely for some crimes, or require a governor’s pardon in order for voting rights to be restored, or face an additional waiting period after completion of sentence (including parole and probation) before voting rights can be restored.”); see also Jason Noble, Iowa Supreme Court Upholds [Lifetime] Ban on Felons Voting, Des Moines Register (June 30, 2016, 5:52 PM), https://www.desmoines
register.com/story/news/politics/2016/06/30/iowa-supreme-court-upholds-ban-felons
-voting-iowa/86525128/ [https://perma.cc/H6D7-Y2M7].

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.54 N.C. Gen. Stat. § 14-202.5(e) (2017) (“A violation of this section is a Class I felony.”). 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.55  Packingham, 137 S. Ct. at 1734. Here, the defendant had posted a sta­tus update on his personal Facebook page regarding the dis­missal of charges from a speeding ticket.56  Id. Because the defend­ant had a previous sex-offense conviction, the statute prohibited his using Facebook; consequently his status update became a convictable crime.57 N.C. Gen. Stat. § 14-202.5 (2017); Packingham, 137 S. Ct. at 1734. 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.”58  Packingham, 137 S. Ct. at 1737.

Other states and judges will undoubtedly attempt to follow this precedent dutifully,59 See Bintliff, supra note 12, at 83. and Colorado should do the same.60 Occasionally, states do not wish to follow the holdings of the Supreme Court, even when pointedly directed towards them. See, e.g., NAACP v. Alabama ex rel.Flowers, 377 U.S. 288 (1964) (rejecting, in the case’s fourth appearance before the Court, Alabama’s attempted ouster of the NAACP from operating within state); Cooper v. Aaron, 358 U.S. 1 (1958) (concerning the forcible armed integration of black students at Central High School with the federal National Guard when the state of Arkansas refused to follow the Court’s holding for integrating public schools in Brown v. Board of Education, 347 U.S. 483 (1954)). 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.61 See supra Part I. Note, Colorado does have ongoing sex offender registration requirements after the completion of a probationary term. Colo. Rev. Stat. § 16-22-103 (2018). 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.62  Colo. Rev. Stat. § 16-11-206 (2018) (“At the [probation revocation] hearing, the prosecution has the burden of establishing by a preponderance of the evidence the violation of a condition of probation”); Additional Conditions of Probation for Sex Offenders, supra note 20 (providing the following conditions in regard to social media: “You shall not be allowed to subscribe to any internet service provider, by modem, LAN, DSL or any other avenue (to include, but not limited to, satellite dishes, PDAs, electronic games, web televisions, internet appliances and cellular/digital telephones) and shall not be allowed to use another person’s internet or use the internet through any venue until approved by the supervision team.” (emphasis added)); see also Andrew R. Klein, Alternative Sentencing, Intermediate Sanctions and Probation 326 (2d ed. 1997) (discussing the evidentiary standards required by various jurisdictions to show a probation violation). 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.63  Klein, supra note 63, at 330 (“In most jurisdictions, pursuant to either statute or case law (or unchallenged practice), the judge may sentence the defendant as originally available to the court for the crime for which he was placed on probation.”); Petersilia, supra note 28, at 30 (explaining that if a defendant violates the conditions of probation, the court may “retain him or her on probation, with or without extending the term or modifying or enlarging the conditions”). Moreover, this consequence is no different than any other probation viola­tion.64  See Colo. Rev. Stat. §§ 16-11-205–207 (2018). 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.65  Falk, supra note 23, at 181–82.

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.66 See Eric S. Janus, Failure to Protect: America’s Sexual Predator Laws and the Rise of the Preventive State13–14 (2006) (“There have always been horrific, sexually motivated crimes against children and women. But in the last years of the 1980s and first of the 1990s a set of forces coalesced to produce two aggressively innovative legislative responses: sexually violent predator commitment laws and community notification laws. They were designed to plug a ‘prevention gap,’ produced, and then made highly visible, by shifts in the criminal law and a heightened awareness of sexual violence.”). 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.67 N.C. Gen. Stat. § 14-202.5(b) (2017). 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.68  Id. 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.69 Packingham v. North Carolina, 137 S. Ct. 1730, 1741-43 (2017) (Alito, J., concurring). Justice Alito did not explain why he chose these three specific websites as examples, but presumably he values online shopping, reading the news, and self-diagnosing lupus. 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. 70  Id. at 1737. Although the Court didn’t specifically address it, it is also important to note that a significant number of jobs now require online applications, including entry-level fast-food and retail positions. See Karen Robes Meeks, The Challenges of Job Hunting Without the Internet, Long Beach Bus. J. (Nov. 21, 2017), http://longbeachmc.org/the-challenges-of-job-hunting-without-the-internet/ [https://perma.cc/366F-M3L8]. See generallyStore Hourly, Target, https://corporate.target.com/careers/store-distribution/store-hourly (last visited Feb. 4, 2018) [https://perma.cc/S92A-NR9L]. Furthermore, many jobs, once obtained, require the use of the internet, email, and instant messenger platforms just to perform basic job functions. Most Working Americans Now Use the Internet or Email at Their Jobs, Pew Research Ctr. (Sept. 24, 2008), http://www.pew
internet.org/2008/09/24/most-working-americans-now-use-the-internet-or-email-at
-their-jobs/ [https://perma.cc/KM63-P3YT]. An offender would likely be severely handicapped in seeking and maintaining employment if not allowed internet access, which would subsequently impact both the legislative reintegration goal of the offender being a productive member of society and any probationary conditions specifically requiring them to maintain employment.

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.71  Packingham, 137 S. Ct. at 1737–38. 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.72  Id. at 1743 (Alito, J., concurring). 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.73 Id. at 1737 (majority opinion); see also supra note 71.

Ultimately, the Court found that the statute’s definition of prohibited social media websites was vastly overreaching.74 Packingham, 137 S. Ct. at 1737–38. 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.”75 Id. at 1741 (Alito, J., concurring). 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.76 Id. at 1743 (Alito, J., concurring).

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.77 See supra Part I, specifically regarding the use of Myspace as the example of a social media platform for the Computer Use Agreement for Sex Offenders. “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.”78  Packingham, 137 S. Ct. at 1732; see also Jayson DeMers, 7 Predictions for How the Internet Will Change Over the Next 15 Years, Forbes (Apr. 18, 2016, 12:38 PM), https://www.forbes.com/sites/jaysondemers/2016/04/18/7-predictions-for-how-the-internet-will-change-over-the-next-15-years [https://perma.cc/WRH7-6SLT].

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.79 Additional Conditions of Probation for Adult Sex Offenders, supra note 20 (“You shall not utilize, by any means, any social networking forums offering an interactive, user-submitted network of friends, personal profiles, blogs, chat rooms or other environment which allows for real-time interaction with others, except under circumstances approved in advance and in writing by the probation officer in consultation with the community supervision team.”). Unfortunately, this definition is broad, is focused on real-time interactions with others, and also likely includes numerous websites beyond Twitter, Instagram, or Facebook.80 Greenwood, Perrin & Duggan, supra note 27. 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.81 Packingham, 137 S. Ct. at 1736 (internal quotations omitted) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 798–99 (1989)) (assuming, without deciding, the statute is content neutral and therefore subject to intermediate scrutiny). The government’s interest in protecting minors from sex offenders is praisewor­thy and potentially sufficient to justify prohibiting their use of Facebook or Instagram.82 Id. at 1736. But the government has significantly less interest in limiting sex offenders’ use of Amazon to pur­chase a bargain-priced Instant Pot.83 Id. at 1743 (Alito, J., concurring) (“Such websites would provide essentially no aid to a would-be child abuser.”). See generally Samantha Gordon, The 2 Most Popular Instant Pots are Both 20% Off on Amazon Right Now, USA Today (Oct. 27, 2017), https://www.usatoday.com/story/tech/reviewedcom/2017/10/
27/2-most-popular-instant-pots-both-20-off-amazon-right-now/107075570/ [https://
perma.cc/P8FZ-87SJ]; Alex Van Buren, Instant Pot vs. Dutch Oven: Which Makes Better Food, Wash. Post (Jan. 22, 2018), https://www.washingtonpost.com/life
style/food/instant-pot-vs-dutch-oven-which-makes-better-food/2018/01/20/520c05b
4-fc66-11e7-8f66-2df0b94bb98a_story.html [https://perma.cc/4F2M-XWPS].

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.84  Packingham, 137 S. Ct. at 1737. 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.”85  Id. at 1737. 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.86 See Perlin & Cucolo, supra note 4, at 18 (“Sexual offenders are arguably the most despised members of our society. Throughout history, society has created harsh laws and legislation in order to condemn them.”); Angela G. Rabin, Child Sexual Abuse, in Sexual Assault, supra note 6, at 234 (discussing the case against former defensive coordinator Jerry Sandusky for sexual abuse against ten victims, ages ten to thirteen, and the media characterization of the Penn State locker room where much of the abuse took place as “the gateway to horror where innocence was devoured by evil, over and over and over again”); Keri B. Burchfield & William Mingus, Not in My Neighborhood: Assessing Registered Sex Offenders’ Experiences With Local Social Capital and Social Control, 35 Crim. Just. & Behav. 356, 359 (2008). 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.87 See Deborah L. Laufersweiler-Dwyer & Gregg Dwyer, Sex Offenders and Child Molesters, in Sexual Assault, supra note 6, at 295, 312 (discussing the types, tactics, and psychology of child molesters); Keith F. Durkin, Misuse of the Internet by Pedophiles: Implications for Law Enforcement and Probation Practice, 61 Fed. Prob. 14, 15 (1996) (discussing the rise of pedophile internet use). Many other sex offenders, however, have committed much less serious crimes with little or no reliance on the internet.88 See Tammy S. Garland & April Bennett, An Overview of Sexual Assault and Sexual Assault Myths, in Sexual Assault, supra note 6, at 3, 21 (discussing the history of sexual assault and sexual assault myths); see also Michele L. Ybarra & Kimberly J. Mitchell, How Risky Are Social Networking Sites? A Comparison of Places Online Where Youth Sexual Solicitation and Harassment Occurs, 121 Pediatrics e350, e356 (2008) (“The majority of youth who are online are not targeted for unwanted sexual solicitation or Internet harassment, and the majority of youth who are targeted do not report it occurring in a social networking site.”). 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.89  See Jill S. Levenson et al., Public Perceptions About Sex Offenders and Community Protection Policies, 7 Analyses Soc. Issues & Pub. Pol’y 1, 17 (2007) (discussing how the majority of study participants did not readily distinguish different levels of sex offenders); Janus, supra note 67, at 146 (“Instead, current predator policy—to identify, stigmatize, and exclude—distorts the true nature and extent of sexual violence, focuses on a small fraction of the problem, ignores the great majority of victims and their trauma, and does little or nothing to deal with the root causes of sexual violence.”).

Sex offenders vary in the execution of their crimes, using different methods to interact with the victim and commit the actual crime,90  Beauregard & Lieb, supra note 1, at 352 (describing how sex offenders generally follow one of three main target-selection scripts: the coercive script, where “[t]he aggressor employs physical violence when approaching the victim and committing the crime”; the manipulative script, where the aggressor uses gifts, money, or drugs to “approach the victim, to lead the victim to the crime scene, and to commit the crime”; and the non-persuasive script, where the aggressor uses direct action to take the victim to the crime site and commit the crime). 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.91  See supra note 7 and accompanying text, regarding the range of Colorado crimes that fall under the “sex offender” designation. Notably, the designation includes crimes not facilitated by the internet and crimes not directed towards children. Some methods of victim selection92  Beauregard & Lieb, supra note 1, at 352. 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.93 Petersilia, supra note 28, at 58.

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.94  Beauregard & Lieb, supra note 1, at 354 fig. 12.1; see also U.S. Dep’t of Justice, Incidence and Prevalence of Sexual Offending (Part 1) (July 2015), https://www.smart.gov/pdfs/IncidenceandPrevalenceofSexualOffending.pdf [https://perma.cc/5SLU-8E3Z] (“Data from law enforcement as well as victimization surveys suggest that sexual assaults, much like other types of crime, have substantially declined over the past [ten] to [twenty] years.”). Yet while arrests have declined, “public concern has risen.”95  Beauregard & Lieb, supra note 1, at 354. 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.” 96  Colo. Rev. Stat.§ 18-1-102.5 (2018); see supra Part II. 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.

Conclusion

Colorado courts have substantial discretion to determine the terms and conditions of probation for each offender.97 Colo. Rev. Stat. § 18-1.3-202 (2018);§ 18-1.3-204. 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.98  Adult Standard Conditions of Probation, supra note 20; Additional Conditions of Probation for Adult Sex Offenders, supra note 20. 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.99 Packingham v. North Carolina, 137 S. Ct. 1730, 1733–34 (2017). 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.100  See supra Section III.A. 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.101  See supra Section II.C. 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.

Appendix



About Marty E. Whalen Brown

J.D., 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.