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Court Finds Pornography and Internet Restrictions for Probationer Constitutional


September 13, 2021

The Court of Appeals found that a similar attack on a North Carolina statute was distinguishable from the defendant’s case and did not warrant a finding of a constitutional violation here.

In Rutledge v. State, the Georgia Court of Appeals held that it was not a violation of a probationer’s constitutional rights to place prohibitions and certain restrictions on his ability to access the internet or possess adult pornography.

The defendant pleaded guilty to charges stemming from an internet sting operation in Twiggs County. The sting operation was conducted by the Twiggs County Sheriff’s Office with the assistance of Perverted Justice.

The defendant communicated with the agent posing as a 13-year-old-girl and sent pornographic images to her. He agreed to meet her and was subsequently arrested. He was then indicted for the offense of criminal attempt to commit aggravated child molestation. Following his guilty plea, he was sentenced to serve 25 years, with the first 10 to be served in prison and the balance on probation.

The Defendant’s Special Conditions of Probation

The defendant’s sentence included the sex offender conditions of probation that have become standard in these cases. Among other things, the conditions prohibited the possession of pornography of any kind and provided that the defendant could not access the internet without the approval of his probation officer.

During the course of his probation, the defendant’s probation officer filed a petition to revoke his probation alleging that the defendant had possessed several images of pornography on his phone and had accessed the internet without permission to post and respond to online personal ads “for causal sexual encounters.”

The court held a probation revocation hearing and found that he was in violation of his probation conditions. The court then sentenced the defendant to serve five additional years in prison.

Were the Probation Conditions a Violation of Free Speech?

In response, the defendant filed a motion to modify the conditions of his probation alleging that these two conditions violated his First Amendment right to free speech. He argued that the prohibition against possessing pornography was a constitutional violation since he was not convicted of an offense involving pornography.

The Court of Appeals noted that those placed on probation may be subject to conditions that regulate their private life in manners that would otherwise be unacceptable. Quoting the U.S. Supreme Court, the Court explained that “probationers do not enjoy the absolute liberty to which every citizen is entitled.”

In determining whether the probation conditions constitute an abuse of discretion, the Court examines whether the defendant’s loss of certain rights is rationally related to the underlying goals of his particular sentence.

The Court found that the prohibition against possessing pornography did not violate his right to free speech since the offense for which he was convicted involved the sending of pornographic images to a person believed by the defendant to be 13 years old.

With regards to the condition restricting his internet access, the Court similarly found that it was rationally related to his offense since he was convicted of an offense that involved online communications.

The Court further reasoned that these conditions are necessary to protect not only the public, but also the sex offender himself from potential abuse (much like the restrictions placed on drug offenders). Lastly, the Court held that the computer restrictions are not overly burdensome when a sex offender can still obtain permission to use the internet for many everyday purposes.

Comparison to Packingham v. North Carolina?

In Packingham, the U.S. Supreme Court held that a North Carolina statute banning sex offenders from accessing certain social media sites was unconstitutional and a violation of the right to free speech. The statute’s prohibition applied to all registered sex offenders, even those whose sentences had long been completed. This was one troubling aspect for the Supreme Court.

Another issue with the North Carolina statute was that it applied to all registered sex offenders, regardless of whether their offense involved a computer, the internet, or even a minor. Thus, the fundamental problem with the statute was that it was overly broad and not specifically targeted to sex offenders who were of particular concern for this type of behavior.

Therefore, the Court of Appeals found that Packingham was distinguishable from the defendant’s case and did not warrant a finding of a constitutional violation here. As a result, the Court affirmed the denial of the defendant’s motion to modify his sentence.

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