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Mutter v. Ross

Supreme Court of West Virginia

March 12, 2018

R.S. Mutter, Warden, Stevens Correctional Center, Petitioner,
v.
BOBBY ROSS, Respondent.

          Submitted: January 24, 2018

         Appeal from the Circuit Court of Kanawha County The Honorable Tod J. Kaufman, Judge Civil Action No. 15-P-322

          Patrick Morrisey, Esq. Attorney General Brooks H. Crislip, Esq. Deputy Attorney General Celeste Webb-Barber, Esq. Assistant Attorney General Zachary A. Viglianco, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Petitioner.

          Clinton W. Smith, Esq. Charleston, West Virginia Counsel for the Respondent.

         SYLLABUS BY THE COURT

         Generally, under Packingham v. North Carolina, 137 S.Ct. 1730 (2017), a parole condition imposing a complete ban on a parolee's use of the internet impermissibly restricts lawful speech in violation of the First Amendment to the United States Constitution. There are instances, however, where the West Virginia Parole Board has a legitimate interest in restricting a parolee's access to the internet. The restrictions must be narrowly tailored so as to not burden substantially more speech than is necessary to further the government's legitimate interests.

          Justice Ketchum.

         The West Virginia Parole Board ("the Board") revoked Bobby Ross's parole based, in part, on him violating a condition of parole prohibiting him from possessing or having contact with a computer or other device with internet access. We are asked whether this condition of parole is constitutional under the First Amendment.[1]

         In 2017, the United States Supreme Court held in Packingham v. North Carolina[2] that a state statute barring registered sex offenders from accessing social media networking websites was an overbroad restriction of the right to free speech in violation of the First Amendment. Like the statute in Packingham, Mr. Ross's condition of parole "bars access to . . . 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."[3] Unlike the statute in Packingham, Mr. Ross's condition of parole extends beyond social media. It forbids Mr. Ross from visiting any website, receiving an email from an employer or medical professional, paying a bill online, using the internet to check the weather, or using a smartphone.

         Because Mr. Ross's condition of parole is broader than the statute struck down in Packingham, we find that it is an overbroad restriction of free speech in violation of the First Amendment.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 1987, Mr. Ross sexually assaulted an adult female in her apartment and stole money from her purse. He was convicted and sentenced to prison on the following charges: (1) first-degree sexual assault; (2) burglary; and (3) attempted aggravated robbery. He remained in jail until the Board released him on parole in May 2014. Upon his release, Mr. Ross was required to register as a sex offender.[4]

         Mr. Ross's release on parole was subject to numerous conditions. Because he was a sex offender, Mr. Ross's parole officer imposed on him a special condition of parole[5] prohibiting him from "possess[ing] or hav[ing] contact with any computer, electronic device, communication device or any device which is enabled with internet access."[6] Furthermore, Mr. Ross's release on parole was subject to him not committing any new violation of criminal law. Under West Virginia's Sex Offender Registration Act, [7] it is a felony for a registered sex offender to fail to inform the West Virginia State Police of any internet account(s) he or she has.[8]

         While he was released on parole, Mr. Ross moved in with his girlfriend, M.W. M.W. owned a computer with internet access which she kept at the residence she shared with Mr. Ross. Both the computer and the internet account were password protected, and it is undisputed that Mr. Ross did not know the password to M.W.'s computer or her internet account. There was no evidence presented that Mr. Ross ever used M.W.'s computer or logged on to the internet during his parole.

         In December 2014, seven months after Mr. Ross was released on parole, Mr. Ross's parole officer learned that M.W. owned a computer. The parole officer did not conduct a forensic analysis of the computer to determine whether Mr. Ross used the computer or that he otherwise logged on to the internet during his parole. Nevertheless, Mr. Ross was arrested and returned to custody for violating the conditions of his parole by possessing or having contact with a computer with internet access.[9]

         The Board conducted a parole revocation hearing charging Mr. Ross with violating his parole in the following three ways: (1) possessing or having contact with a computer with internet access; (2) failing to inform the State Police of an internet account; and (3) using marijuana on three separate occasions during his parole. Mr. Ross pled not guilty to possessing or having contact with a computer and failing to report an internet account, but he admitted to using marijuana.

         At the revocation hearing, Mr. Ross's parole officer testified before the Board that she conducted no forensic analysis of the computer to reveal its internet usage history. The State presented no evidence that Mr. Ross used M.W.'s computer, used or possessed another computer, or had an internet account or username. The State also failed to refute testimony from both Mr. Ross and M.W. that he did not know the password to M.W.'s computer or her internet account.

         Nevertheless, the Board found sufficient evidence that Mr. Ross was guilty of possessing or having contact with a computer, failing to report an internet account, and using marijuana. The Board revoked Mr. Ross's parole and reinstated his prison sentence.

         Mr. Ross challenged the Board's decision to revoke his parole and filed a Petition for a Writ of Habeas Corpus in the circuit court. The circuit court vacated the Board's decision and reinstated Mr. Ross's release on parole on the following three grounds: (1) Mr. Ross's special condition of parole prohibiting his possession or contact with a computer with internet access was unconstitutional; (2) there was insufficient evidence that Mr. Ross owned an internet account to report to the State Police; and (3) a revocation of parole based on simple possession of marijuana violates West Virginia's parole laws.[10] The State appeals the circuit court's order and requests that we reinstate the Board's decision to revoke Mr. Ross's parole.[11]

         II.

         STANDARD OF REVIEW

         The State argues that the circuit court erred in reversing the Board's decision to revoke Mr. Ross's parole. Generally, "[t]he decision to grant or deny parole . . . shall be reviewed by this Court to determine if the [Parole Board] abused its discretion by acting in an arbitrary and capricious fashion."[12] However, to the extent we are called upon to resolve a constitutional question, our standard of review is de novo.[13]

         III.

         ANALYSIS

         The Board revoked Mr. Ross's parole on the following three grounds: (1) he possessed or had contact with a computer with internet access; (2) he failed to inform the State Police of an internet account; and (3) he used marijuana. The State argues that the revocation of Mr. Ross's parole was constitutional, supported by the evidence in the record, and in accordance with West Virginia's parole laws. For the reasons explained below, we disagree with the State and affirm the circuit court's order vacating the Board's decision to revoke Mr. Ross's parole.

         A. Possession or Contact with a Computer with Internet Access

         Mr. Ross argues that the special condition of his parole, which prohibited him from possessing or having contact with any computer or electronic device with internet access, was unconstitutional in light of Packingham v. North Carolina, 137 S.Ct. 1730 (2017). In Packingham, the Court held that a state statute which barred registered sex offenders from accessing "social media networking websites"[14] was an overbroad restriction on free speech in violation of the First Amendment.[15] Mr. Ross contends that the special condition of his parole was broader than the statute struck down in Packingham because it operated as a complete ban on his access to the internet, and therefore, it too was a violation of the First Amendment.

         The First Amendment protects a person's access to the internet.[16] As the Court in Packingham provided:

A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. . . . While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace - the vast democratic forums of the internet ingeneral.[17]

         Therefore, a content neutral law restricting a person's access to the internet cannot stand unless it is "narrowly tailored to serve a significant governmental interest."[18] That is, a law must not restrict substantially more speech than is necessary to further the government's interest.[19]

         In Packingham, the Court acknowledged that the purpose behind the statute, protecting children from sexual abuse solicited over the internet, was a legitimate governmental interest.[20] Indeed: "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."[21] The State is limited to narrowly tailored restrictions specifically crafted to "ward off the serious harm that sexual crimes inflict."[22]

         The fatal flaw with the statute in Packingham was its broad scope: it prohibited substantially more speech than was necessary to protect children from sexual abuse solicited over the internet. By barring registered sex offenders from accessing social media, the state restricted First Amendment ...


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