State v. Johnson

197 Wash.2d 740

487 P.3d 893

STATE of Washington, Respondent,

v.Christopher R. JOHNSON, Petitioner.

No. 98493-0

Supreme Court of Washington.

Filed : June 10, 2021

Lila Jane Silverstein, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Petitioner(s).

Prosecutor's Office-Criminal Division Kitsap County, 614 Division Street, Ms-35, Port Orchard, WA, 98367, John L. Cross, Kitsap County Prosecutor's Office, 614 Division St., Port Orchard, WA, 98366-4681, for Respondent(s).

González, C.J. ¶ 1 Christopher Johnson was convicted of child sex crimes. He challenges a condition of community custody as unconstitutionally overbroad and vague. This condition will require Johnson to access the Internet only through filters approved by his community custody officer. We agree that this condition could implicate Johnson's constitutional rights and must be applied carefully by his future community custody officer. However, when read in light of Johnson's convictions for attempted second degree child rape, attempted sexual abuse of a minor, and communication with a minor for immoral purposes, we conclude that the condition is neither overbroad nor vague. Accordingly, we affirm.

FACTS

¶ 2 This case began with a sting operation conducted by the Missing and Exploited Children Task Force, which looked for potential child sex predators. Task force members advertised on the Craigslist website, seeming to invite sex. Johnson responded to one of these advertisements. Over the next few hours, he and a task force member pretending to be a 13 year old girl exchanged text messages and e-mail where they discussed meeting for sex, possibly in exchange for money. They arranged a rendezvous in a public place. Johnson was arrested not long after he arrived at the rendezvous.

¶ 3 Johnson was charged with attempted second degree rape of a child, attempted commercial sexual abuse of a minor, and communication with a minor for immoral purposes. Johnson's defense theory was that he went on to Craigslist looking for casual sex with an adult woman and that he had no intention of having sex with a child. A jury found Johnson guilty as charged.

¶ 4 At sentencing, the State specifically asked the judge to prohibit Johnson from accessing

the worldwide web through any means including but not limited to the internet, unless authorized. I'm not asking he never can, but that it be authorized by the [community custody officer] so that that could be tracked. That was the way in which this crime was committed. And that is absolutely critical to combatting recidivism and to protecting the community.

Verbatim Report of Proceedings (May 18, 2018) at 16. Johnson strenuously objected:

We are objecting to the majority of the probation conditions that [the State] asked for. No access to the worldwide web. That is simply too broad. I don't know how a person would function in today's world without accessing the web. You can't send an e-mail to your wife. You can't look for a job. You can't sell your car. I think it's appropriate that there be some monitoring, there are filters that can be imposed.

Those are appropriate. But simply saying no access to the worldwide web unless specifically authorized by a [community custody officer] is overly broad.

Id. at 37-38. The judge clearly wrestled with this issue:

I don't want to exclude Mr. Johnson entirely from accessing the web. ... But I think the issue has to be with regards to filtering. And so I don't know how to deal with that at this point. I don't want to exclude him entirely. But I think that there has to be some mechanism to control so he's not on web sites related to the conduct here. So I don't know how you want to deal with that.

[THE STATE]: Except through a filter approved by [the Department of Corrections]?

THE COURT: Yeah. Filter approved or something like that.

Id. at 51-52. The judge ultimately decided that Johnson shall "not use or access the World Wide Web unless specifically authorized by [his community custody officer] through approved filters" as a condition of community custody. Clerk's Papers at 99.

¶ 5 Johnson appealed on several grounds. The Court of Appeals affirmed on all issues. State v. Johnson , 12 Wash. App. 2d 201, 205-06, 460 P.3d 1091 (2020). We granted review limited to Johnson's challenge to the limitation on his future Internet use. 196 Wash.2d 1001, 471 P.3d 227 (2020).

ANALYSIS

¶ 6 Johnson challenges this community custody condition as unconstitutionally overbroad and vague. We review community custody conditions for abuse of discretion. See State v. Bahl , 164 Wash.2d 739, 753, 193 P.3d 678 (2008) (citing State v. Riley , 121 Wash.2d 22, 37, 846 P.2d 1365 (1993) ). Among other things, "[d]iscretion is abused if it is exercised on untenable grounds or for untenable reasons." State v. Vy Thang , 145 Wash.2d 630, 642, 41 P.3d 1159 (2002) (citing State ex rel. Carroll v. Junker , 79 Wash.2d 12, 26, 482 P.2d 775 (1971) ).

¶ 7 It is manifestly unreasonable to impose an unconstitutional condition of community custody. State v. Hai Minh Nguyen , 191 Wash.2d 671, 678, 425 P.3d 847 (2018) (citing Bahl , 164 Wash.2d at 753, 193 P.3d 678 ). But "[l]imitations upon fundamental rights are permissible, provided they are imposed sensitively." Riley , 121 Wash.2d at 37, 846 P.2d 1365 (citing United States v. Consuelo-Gonzalez , 521 F.2d 259, 265 (9th Cir. 1975) ). Restrictions on Internet access have both due process and First Amendment implications. See Packingham v. North Carolina , ––– U.S. ––––, 137 S. Ct. 1730, 1735, 198 L. Ed. 2d 273 (2017) (citing Reno v. Am. Civil Liberties Union , 521 U.S. 844, 868, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997) ); Blondheim v. State , 84 Wash.2d 874, 878, 529 P.2d 1096 (1975) (citing Grayned v. City of Rockford , 408 U.S. 104, 114, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) ); U.S. CONST . amend. I. Judges may restrict a convicted defendant's access to the Internet, but those restrictions must be narrowly tailored to the dangers posed by the specific defendant. State v. Padilla , 190 Wash.2d 672, 678, 416 P.3d 712 (2018) ; United States v. Holena , 906 F.3d 288, 290 (3d Cir. 2018) (citing United States v. Albertson , 645 F.3d 191, 197 (3d Cir. 2011) ).

¶ 8 Johnson characterizes this condition as prohibiting him from using the Internet without his community corrections officer's approval. We disagree with this characterization. When taken in light of the judge's oral comments, we conclude it merely requires that Johnson use the Internet only through filters that have been approved by his community corrections officer. It should not be read to require him to seek permission every time he would use the Internet.¹ With this characterization in mind, we turn to his arguments.

1. OVERBREADTH

¶ 9 Johnson argues that the restriction on his Internet use is not narrowly tailored to further the goals of the Sentencing Reform Act of 1981, ch. 9.94A RCW. We disagree. The act's stated goals include preventing recidivism, protecting the public, and providing offenders with opportunities to improve themselves. RCW 9.94A.010. Johnson committed his crimes using the Internet. A proper filter restricting his ability to use the Internet to solicit children or commercial sexual activity will reduce the chance he will recidivate and will also protect the public. While a blanket ban might well reduce his ability to improve himself, a properly chosen filter should not. We encourage Johnson's future community custody officer to have a meaningful conversation with Johnson about appropriate Internet use and to choose filters that will accommodate Johnson's legitimate needs.

¶ 10 Johnson also argues that the limitation on his Internet use is similar to limitations imposed by a North Carolina statute the United States Supreme Court struck down in Packingham , 137 S. Ct. at 1733-34, 1736-37. North Carolina essentially barred anyone convicted of certain sex offenses from many popular social media sites, including Facebook and Twitter. Id. at 1733, 1737. The Court assumed that intermediate scrutiny applied, found the ban was not narrowly tailored to further a significant governmental interest, and concluded that it burdened substantially more speech than was necessary to further the government's interest. Id. at 1736-38. The Court also noted that a more narrowly tailored restriction might well survive constitutional scrutiny:

it can be assumed 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. Specific laws of that type must be the State's first resort to ward off the serious harm that sexual crimes inflict.

Id. at 1737 (citation omitted).

¶ 11 We conclude that the community custody condition here is significantly narrower than the statute struck in Packingham . Johnson is not prohibited from accessing any particular social media site. Instead, he is required to use the Internet only through filters approved by his community custody officer. While requiring Johnson to use an overzealous filter might violate the First Amendment, that is a question of appropriate enforcement and a question for another day.²

¶ 12 We conclude that this condition is not unconstitutionally overbroad.

2. VAGUENESS

¶ 13 A condition of community custody is unconstitutionally vague if it either fails to give fair warning of what is forbidden or fails to give ascertainable standards that will prevent arbitrary enforcement. Bahl , 164 Wash.2d at 752-53, 193 P.3d 678 (citing City of Spokane v. Douglass , 115 Wash.2d 171, 178, 795 P.2d 693 (1990) ). "If ‘persons of ordinary intelligence can understand what the [law] proscribes, notwithstanding some possible areas of disagreement, the [law] is sufficiently definite.’ "

Id. at...