by Douglas Ankney

At issue in this case is the constitutionality of 730 ILCS 5/5-6-3(a)(8.9), which imposes as a condition of probation on all sex offenders a complete, blanket ban from accessing or using any social networking website. The Supreme Court of Illinois held that the statute is unconstitutionally overbroad.

While Conrad Allen Morger was a teenager, he touched his teenage sister’s breast and vagina and had her touch his penis. The teenagers were in their family residence when the acts occurred, and they took place after Morger had watched pornography on the internet. A presentence evaluation by a clinician concluded that Morger was a “moderate to high risk to reoffend,” but he could be safely treated in the community with appropriate supervision.

The circuit court imposed 18 conditions of probation, including: prohibiting Morger from viewing, owning, or downloading pornography or sexually stimulating material; prohibiting him from having contact with anyone under 18 years of age; requiring him to obtain pre-approval from his probation officer for use of devices with internet capability; unannounced examinations of those devices; allowing installation of systems on his electronic devices that monitor his internet use; and granting his probation officer the power to impose any other appropriate restrictions concerning Morger’s use of or access to a device with internet capability.

In addition, the circuit court imposed 730 ILCS 5/5-6-3(a)(8.9), which provides that a convicted sex offender must “refrain from accessing or using a social networking website as defined in § 17-0.5 of the Criminal Code of 2012.” That section defines “social networking website” as “an Internet website containing profile web pages of the members of the website that include the names or nicknames of such members, photographs placed on the profile web pages by such members, or any other personal or personally identifying information about such members and links to other profile web pages on social networking websites of friends or associates of such members that can be accessed by other members or visitors to the website. A social networking website provides members of or visitors to such a website the ability to leave messages or comments on the profile web page that are visible to all or some visitors to the profile web page and may also include a form of electronic mail for members of the social networking website.” 720 ILCS 5/17-0.5.

The circuit court sentenced Morger to four years of probation, and on appeal, he challenged several conditions of his probation. With regard to the blanket ban on access or use of social networking websites, the appellate court found it was discretionary because the probation officer could lift the ban. After the appellate court affirmed, the Illinois Supreme Court granted further review only on the issue of whether the complete ban on the use of social media is unconstitutional.

The Court observed that the appellate court was wrong in its finding that the probation condition was discretionary. The probationary condition is statutory, and it applies to all probationers convicted of a sex offense as defined by the Sex Offender Registration Act, 730 ILCS 150/1 et seq. The statute contain no provision permitting the ban to be lifted by a probation officer. In Packingham v. North Carolina, 137 S. Ct. 1730 (2017), the Supreme Court of the United States (“SCOTUS”) concluded that a North Carolina law that barred registered sex offenders from gaining access to commercial social networking websites impermissibly restricted lawful speech in violation of the First Amendment. In reaching this conclusion, SCOTUS applied intermediate scrutiny because the statute was content neutral. SCOTUS also assumed the statute applied to commonplace networking websites like Facebook, LinkedIn, and Twitter and assumed the First Amendment permits states to enact specific, narrowly tailored laws to prohibit sex offenders from engaging in conduct that presages a sex crime, like contacting a minor or using a website to gather information about a minor.

SCOTUS likened social media websites to the “new town square” and said, “By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”

While the defendant in Packingham had completed his sentence, the Illinois Supreme Court concluded that it made no difference. The Court pointed to SCOTUS’ statement in Packingham that “[e]ven convicted criminals — and in some instances especially convicted criminals — might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.” The Illinois Supreme Court, relying on In re J.W., 787 N.E.2d 747 (Ill. 2003), instructed that when assessing the reasonableness of a condition of probation, it is necessary to consider (1) whether the restriction is related to the nature of the offense or the rehabilitation of the probationer, (2) whether the condition reasonably relates to the rehabilitative purpose of the legislation, (3) whether the value to the public in imposing the condition outweighs the impairment to the probationer’s rights, and (4) whether an alternative means less subversive to the probationer’s rights exists that will comport with probation.

“Where a condition of probation requires a waiver of precious constitutional rights, the condition must be narrowly drawn; to the extent it is overbroad, it is not reasonably related to the compelling state’s interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.” Id.

In applying these factors to Morger, the Court determined that he did not seek victims over the internet or act as a sexual predator seeking to molest children using the internet. Morger’s acts were connected to the internet only insofar as he had watched a pornographic movie on the internet.

Regarding the second factor, the Court concluded that a complete ban on social networking websites actually hindered rehabilitation rather than furthered that legislative goal. Considering the third factor, the Court determined the complete ban did not provide a value to the public that outweighed the impairment to Morger’s rights because he did not use social networking websites to commit his crimes, so there was no conceivable benefit to the public in imposing the ban. And as to the fourth factor, the Court cited alternative means that were less subversive to Morger’s rights but still comported with the purposes of probation as evidenced by the fact that these means had already been imposed as other conditions of probation, viz., preliminary approval of use of devices with internet access, unannounced examinations of those devices, monitoring of internet usage — these conditions would ensure Morger does not contact minors and ensure he does not view or download pornography from the internet.

The Court concluded that 730 ILCS 5/5-6-3(a)(8.9) is overbroad and thus facially unconstitutional.

Accordingly, as to this issue, the Court reversed the judgment of the appellate court and vacated the probationary condition banning access to, or use of, social media websites. The appellate court’s judgment was otherwise affirmed as to the other issues. See: People v. Morger, 2019 Ill. LEXIS 1055 (2019). 

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