Opinions Editor

Jim Dey is a staff writer for The News-Gazette. His email is jdey@news-gazette.com.

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Six years ago, then-20-year-old Conrad Morger was charged in McLean County with aggravated criminal sexual abuse. He was convicted and sentenced to four years of probation that was governed by more than a dozen conditions designed to ensure that Morger did not re-offend.

Last week, the Illinois Supreme Court unanimously declared that one of those conditions — a complete ban on Morger’s access to any social media sites, Facebook, Twitter, LinkedIn — violated his constitutional right to free speech.

“(The statutory provision authorizing the ban) unnecessarily sweeps within its purview those who never used the Internet — much less social media — to commit their offenses and who show no propensity to do so, as well as those whose Internet activities can be supervised and monitored by less restrictive means,” wrote Justice Lloyd Karmeier.

He was joined in the opinion by five colleagues. Justice Anne Burke did not participate in the opinion.

Karmeier’s 22-page opinion included a lengthy explanation of both the goals behind a sentence of probation as well as reasons why the law limits the conditions imposed.

Most notably, however, the court cited the important role the Internet plays in communications and explains why an absolute bar on access to it is a violation of an individual’s “fundamental” constitutional rights.

Considering the Internet, at least as it’s seen today, did not exist 30 years ago, the court’s ruling shows how powerful new forms of communication can win a place under the U.S. Constitution’s protective umbrella.

Quoting from a U.S. Supreme Court precedent, the Illinois Supreme Court said that “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights,” Karmeier said.

Note the use of the word “legitimate.” Karmeier acknowledged the legislature and courts are free to impinge on the fundamental rights of those whose criminal activities fall under the purview of the courts, but the restrictions imposed must bear a reasonable relationship to the misbehavior the law seeks to prevent.

By the time the issue reached the high court, Morger had successfully completed his probation sentence. So his objections to the social media ban are moot in his case. Nonetheless, the high court addressed the social media ban issue because it is likely to come up again in future cases.

Morger sexually abused a teenage girl, and the evidence showed it was a crime of convenience and opportunity that had nothing to do with him searching for victims on the Internet.

As conditions of probation, he was barred from having any contact with individuals under 18 as well as downloading pornography on the Internet. Morger also was required to permit probation officers to search his computer records to make sure he was in compliance with the court-imposed rules.

In his opinion, Karmeier pointed out that the goal of probation is to both punish the defendant and protect the public. As a consequence, conditions of probation address both issues but must be reasonable and only impinge on an individual’s rights to the degree necessarily to achieve the court’s goals.

Morger argued the total ban on social media was unconstitutionally overbroad because it allows “no exceptions for legitimate purposes.”

Defending the law, the attorney general’s office argued that a comprehensive ban on Morger would remove the “temptation to re-offend.”

That answer “might carry some weight where a defendant is one who has used social media to orchestrate and ultimately commit his crimes,” Karmeier wrote “... a host of offenders — this defendant included — do not fall into that category.”

Because Morger’s “Internet activities can be supervised and monitored by less restrictive means,” the court concluded the total ban is “overbroad and facially unconstitutional.”

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazete.com or by phone at 217-351-5369.

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