A World Without Internet: A New Framework for Analyzing a Supervised Release Condition That Restricts Computer and Internet Access
A World Without Internet: A New Framework for Analyzing a Super vised Release Condition Th Restricts Computer and Internet Access at
Gabriel Gillett 0 1
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1 Gabriel Gillett, A World Without Internet: A New Framework for Analyzing a Supervised Release Condition Th at Restricts Computer and Internet Access , 79 Fordham L. Rev. 217 (2011). Available at:
This Note explores whether a condition of supervised release that
restricts computer and Internet access violates the doctrine of
unconstitutional conditions. Although a circuit split has developed
regarding the scope of a permissible restriction, as Courts of Appeals have
been inundated with cases challenging the validity of these technology
restrictions, no court has yet viewed these limits through the lens of the
doctrine of unconstitutional conditions. This Note begins with a discussion
of the First Amendment and the theory of unconstitutional conditions,
tracing their respective developments in cases relating to prisoners, speech,
and the Internet age. Next, it synthesizes the oft-criticized idea of
unconstitutional conditions into a new three-prong framework, judging the
propriety of a condition based on the government’s coerciveness in making
the offer, the purpose for pursuing the condition, and the condition’s effect
on protected speech. Then, this Note surveys cases where courts have ruled
on the validity of a computer or Internet restriction, and recasts their
reasoning to discuss whether such a condition may be constitutional, using
the coercion-purpose-effect framework. Finally, this Note concludes that a
condition is constitutional where it is accepted knowingly and voluntarily,
is intended to protect the public rather than regulate speech indirectly, and
where computer-monitoring and Internet-filtering technology is maximized
to minimize First Amendment infringement.
TABLE OF CONTENTS
I. UNDERSTANDING A TECHNOLOGY RESTRICTION ON SUPERVISED
RELEASE: THE FIRST AMENDMENT, PRISONERS, AND THE
THEORY OF UNCONSTITUTIONAL CONDITIONS ............................. 222
* J.D. Candidate, 2011, Fordham University School of Law. B.A., 2005, The George
Washington University. I am grateful to Professor Abner
Greene and Dean Michael M. Martin for their guidance and counsel in developing this Note.
I couldn’t have done it without Stacey’s encouragement, patience, and ne
Paul R. Thielemann had the support of his family, a history of
employment, and had never had run-ins with the law;1 Thielemann,
however, was a predator who trafficked in child pornography.2 After
America Online (AOL) detected transmissions of child pornography from
Thielemann’s account, it reported the activity to the Delaware State Police.3
On February 23, 2007, law enforcement executed a search warrant, based
on AOL’s tip, and seized Thielemann’s computer.4 Stored on the computer,
the officers found hundreds of pornographic images of children, explicit
online conversations describing sexual encounters with minors, and
transcripts of Thielemann encouraging others to exploit and victimize
children.5 Thielemann was indicted on eighteen counts of child
1. United States v. Thielemann, 575 F.3d 265, 271
(3d Cir. 2009)
, cert. denied, 130 S.
Ct. 1109 (2010).
2. See id. at 268.
5. Id. at 268, 269 n.4.
pornography-related crimes, and pleaded guilty to one count of receiving
child pornography.6 The trial court sentenced him to twenty years in prison
followed by a ten-year term of supervised release, which included a
condition preventing him from “own[ing] or operat[ing] a personal
computer with Internet access in a home or at any other location, including
employment, without prior written approval of the Probation Office.”7
Thielemann appealed the computer condition, arguing it was unrelated to
the offense and overly restrictive.8 The U.S. Court of Appeals for the Third
Circuit disagreed, finding the condition “clearly and properly imposed . . .
to deter future crimes via the [I]nternet and to protect children.”9
Thielemann’s case became the fifth time in a decade that the Third Circuit
had faced a similar challengethree times accepting the condition as
constitutional, because it related to the crime and did not unnecessarily
deprive the convict of liberty,10 and twice finding the condition
unconstitutional, because it was unduly restrictive and an overbroad
regulation of speech.11
The Third Circuit’s experience is emblematic of the struggle of federal
courts across the country to balance the need to protect the public from
released sex offenders without unduly restricting the constitutional rights of
convicts that are no longer incarcerated.12 As child pornography crimes on
the Internet have become increasingly prevalent,13 more and more courts
are ruling on the legality of a condition of supervised release that limits
access to a computer or the Internet. Every United States Court of Appeals,
save the Federal Circuit, has dealt with the issue.14 On one h
a rehabilitating prisoner to use the Internet affords him15 the chance to
communicate with millions of people and “access vast amounts of
information from around the world.”16 Nevertheless, Internet access also
provides the offender the means to seek new victims and the opportunity to
prey on society’s weakest members.17
While courts have frequently ruled on the propriety of limiting computer
and Internet access as a condition of supervised release, they have not
discussed the issue using the theory of unconstitutional conditions.18 This
Note will harness the relevant cases and theories to develop a new
framework to examine whether such a restriction may be an
unconstitutional condition. It will do so by looking at this legal question
through the prism of cases that have not explicitly addressed
unconstitutional conditions, despite the opportunity. Part I.A introduces the
U.S. Constitution’s First Amendment right to free speech and its adaptation
in the technological age, which is crucial to understanding the backdrop of
disputes over a restriction that limits access to technology. Then, Part I.B
recounts the history and theory of unconstitutional conditions, including the
theory’s application in First Amendment and prisoner contexts. Part I.C
offers a new three-prong framework, gleaned from the reasoning of courts
and commentators, to analyze the constitutionality of a condition that limits
computer and Internet use. These prongs judge whether the government
coerces a beneficiary into accepting a conditional offer, whether the
government’s purpose for a condition is proper, and whether a condition’s
effect on speech is overly restrictive. Finally, Part I.C explains why
imposing a computer or Internet restriction as a condition of supervised
release for a sex offender may create an unconstitutional conditions
problem. Part II surveys cases where courts have ruled on the validity of a
computer condition, and recasts their reasoning to discuss whether or not
such a condition may be constitutional, using this Note’s
coercion-purposeeffect framework. Finally, Part III argues that a condition that limits
computer and Internet access is constitutional where the convict is not
compelled to accept release, the government does not intend to regulate
speech indirectly, and the condition protects children while minimizing
First Amendment infringement.
I. UNDERSTANDING A TECHNOLOGY RESTRICTION ON SUPERVISED
RELEASE: THE FIRST AMENDMENT, PRISONERS, AND THE THEORY OF
Part I of this Note introduces the First Amendment and the elements
needed to determine the validity of a condition on supervised release. First,
it lays out the right to freedom of speech as it relates to prisoners,
pornography, and the Internet, because a computer and Internet restriction
as a condition of supervised release operates at the nexus of these issues.
Next, it describes the “doctrine” of unconstitutional conditions, including
the theoretical foundation and case law related to a condition that
circumscribes speech or prisoner rights. Then, it synthesizes various
frameworks for analyzing a condition to offer a new model for judging the
validity of a condition. Finally, this part explains why a restriction on
computer and Internet access as a condition of supervised release may
create an unconstitutional condition.
A. The Scope and Limits of First Amendment Freedom of Speech
The First Amendment is implicated because it underlies concerns about
the effect of computer and Internet restrictions on the speech of convicts on
supervised release. The First Amendment prohibits the federal government
from “abridging the freedom of speech.”19 The right to free speech was
enshrined in the Constitution to “assure unfettered interchange of ideas for
the bringing about of political and social changes desired by the people.”20
It has since been credited as the foundation upon which American
democracy thrives.21 Despite the broad guarantee of freedom of speech in
the text of the First Amendment, the government is not affirmatively
obligated to provide citizens the means to exercise those rights,22 and the
19. U.S. CONST. amend. I. The guarantee of freedom of speech originally only applied
to the federal government, but has since been incorporated against the states through the Due
Process Clause of the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 666
20. Roth v. United States, 354 U.S. 476, 484 (1957).
21. See GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT 38 (3d ed. 2008); THE
FIRST AMENDMENT, FREEDOM OF SPEECH: ITS CONSTITUTIONAL HISTORY AND THE
CONTEMPORARY DEBATE 1320 (Vikram David Amar ed., 2009); see also DAVID G. POST, IN
SEARCH OF JEFFERSON’S MOOSE: NOTES ON THE STATE OF CYBERSPACE 18792 (2009)
(detailing Thomas Jefferson’s view on the critical importance of the First Amendment).
22. See U.S. CONST. amend. I. (stating the right to free speech as a prohibition on
government activity); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH
115 (1995) (“Government is under no obligation to subsidize speech. It can refuse to fund
any and all speech-related activities. If it does not want to fund expression at all, it is free to
do so.”); Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a
Positive State, 132 U. PA. L. REV. 1293, 132425 (1984).
U.S. Supreme Court has consistently held the government may stifle speech
in appropriate situations.23 By way of example, this part discusses how the
government may limit speech for prisoners at various stages of
incarceration, and may also restrict obscene speech that the First
Amendment does not protect. If the government may regulate speech in the
tangible world, it also may regulate similar speech occurring online.
1. A Convict’s Enjoyment of First Amendment Speech Rights Depends on
His Level of Incarceration
The government’s power to regulate prisoner speech is commensurate
with the level of incarceration along a continuum of severity of punishment,
and is at its apogee for incarcerated prisoners. In Procunier v. Martinez,24
the Supreme Court established that the government need only show that a
regulation reasonably relates to maintaining prison order to comply with the
First Amendment.25 Procunier also empowered the government to impose
a speech regulation within prison where it rationally advanced the state
interest in security or rehabilitation, and did not limit speech more than
necessary.26 This justified restrictions on speech between prisoners in
different institutions and limits on an inmate’s right to access speech from
outside prison where the government showed its actions related to prison
safety and security.27 The Procunier line of cases has been adapted in
modern times to substantiate regulations that curb Internet access inside
prison,28 though electronic communication may have a positive impact on
inmate rehabilitation and ease reintegration into society after a sentence is
completed.29 Thus, the Court found that a prisoner in lockup has a more
limited right to free speech than a person outside the prison walls.
While the government may regulate speech for a prison inmate, it has
much less power to restrict the First Amendment rights of a released
convict on parole or probation. Parole is a system where the government
decides to release the prisoner before he serves the full sentence, often
because of good behavior.30 It is typically given to a convict who is not yet
ready for freedom, and often requires the parolee to report regularly to a
parole officer.31 Even less severe is probation, a court-imposed sentence
given in lieu of a prison term.32 In either case, the government maintains
leverage to enforce the condition by retaining power to alter the condition
or return the convict to prison.33 A released convict’s conditional liberty
affords him greater speech rights than an inmate, but only to the extent that
the state’s interest in public safety or prisoner rehabilitation is not
implicated.34 For example, the government may restrict speech for
penological reasons, but may not universally require a parolee to obtain
permission before speaking publicly,35 or prevent a released convict from
profiting by publishing details of a crime.36 In essence, the government
must prove a more rational connection between limiting parolee or
probationer speech and public safety to comport with the First Amendment.
Supervised release is a hybrid penalty, which creates an intermediate
burden for the state to justify burdens on convict speech. Supervised
release, “in contrast to probation [or parole], is ‘meted out in addition to,
30. BLACK’S LAW DICTIONARY 1227 (9th ed. 2009); see also Morrissey v. Brewer, 408
U.S. 471, 477 (1972) (stating parole is given to reintegrate prisoners into society while
cutting incarceration costs). See generally JUDITH GREENE & MARC MAUER, THE
SENTENCING PROJECT, DOWNSCALING PRISONS: LESSONS FROM FO
UR STATES (2010
available at http://sentencingproject.org/doc/publications/
publications/inc_DownscalingPrisons2010.pdf (charting early release trends); ILYANA
KUZIEMKO, GOING OFF PAROLE: HOW THE ELIMINATION OF DISCRETIONARY PRISON RELEASE
AFFECTS THE SOCIAL COST OF CRIME (2007), available at
http://faculty.chicagobooth.edu/workshops/AppliedEcon/archive/pdf/KuziemkoGoingOffParole.pdf (suggesting that parole lowers long-term prison costs and reduces
31. See Samson v. California, 547 U.S. 843, 854 (2006). Federal parole decisions are
made by the U.S. Parole Commission, a Justice Department agency. U.S. DEP’T OF JUSTICE:
ANSWERING YOUR QUESTIONS, http://www.justice.gov/uspc/questions.htm
(last visited Sept.
32. BLACK’S LAW DICTIONARY 1322 (9th ed. 2009); infra note 37 and accompanying
33. See Morrissey, 408 U.S. at 47880; see also LAUREN E. GLAZE & THOMAS P.
BONCZAR, U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS BULL. , PROBATION AND
PAROLE IN THE
UNITED STATES, 2008
, at 1 (2009), available at
(counting, as of 2007, more than five
million probationers and parolees in the United States)
; Solomon Moore, Struggling to Keep
Tabs on Paroled Sex Offenders, N.Y. TIMES, Sept. 27, 2009, at A14 (highlighting parole’s
impact on state prison systems).
34. See Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (“[I]t is always true of
probationers . . . that they do not enjoy ‘the absolute liberty to which every citizen is entitled,
but only . . . conditional liberty properly dependent on observance of special [probation]
restrictions.’” (alteration in original) (quoting Morrissey, 408 U.S. at 480)); Morrissey, 408
U.S. at 482; United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 & n.14 (9th Cir. 1975)
(noting a condition on probationer and parolee speech is not per se suspect).
35. See United States v. Richards, No. 09-10324, 2010 U.S. App. LEXIS 13133, at *67
(9th Cir. June 25, 2010)
; Porth v. Templar, 453 F.2d 330, 334 (10th Cir. 1971); Hyland v.
Procunier, 311 F. Supp. 749, 75051 (N.D. Cal. 1970).
36. See Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502
U.S. 105, 10815, 12023 (1991).
not in lieu of, incarceration.’”37 This places it in the middle of the
continuum because it is more lenient than jail time, but more harsh than
parole or probation.38 The United States Probation Office, an arm of the
judicial branch, oversees a convict on supervised release.39 To deter
recidivism, a court has independent power to impose conditions of release,
alter the conditions after confinement, and hold a convict in contempt for
any violation.40 Following the logic of Procunier and its progeny, the
government has less power to restrict the liberty and speech of a convict on
supervised release precisely because it is a less harsh punishment than
prison.41 However, the government may restrict the speech of a convict on
supervised release where it has a legitimate state interest.
2. The Government’s Power To Limit Enjoyment of Sexually Explicit
Material Depends on the Type of Content
Just as the government’s authority to constrain prisoner speech differs
based on the severity of the punishment, its power to regulate non-prisoner
speech also varies based on the nature of the content. Despite the Supreme
Court’s holding that states could regulate sexually explicit speech for
minors,42 the line between pornography and obscenity as it related to adults
remained unclear until Miller v. California.43 In that case, a jury convicted
the owner of a mail-order business, which sold erotic photos and drawings,
of a misdemeanor after he sent unsolicited advertising brochures to
potential customers.44 In a landmark ruling, the Supreme Court held that
“obscene material is not protected by the First Amendment.”45 However,
due to the danger of speech regulation, it found that obscenity was
“carefully limited” to sexual content that met the following standard:46
(a) whether “the average person, applying contemporary community
standards” would find that the work, taken as a whole, appeals to the
prurient interest; . . . (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.47
While Miller established that the government may have the power to
regulate obscene material within the strictures of the First Amendment, it
failed to provide guidance on whether obscene content was the only
regulable speech under the First Amendment.
Nine years after Miller, the Supreme Court found that the government
may regulate child pornography, whether deemed obscene or not. In New
York v. Ferber,48 a jury convicted a bookstore owner of violating a law that
outlawed sales of material depicting sexual conduct by minors.49 The New
York Court of Appeals struck down the law, saying its failure to include a
standard for obscenity violated free speech.50 The Supreme Court, which
granted certiorari to decide if child pornography must be regulated as
obscenity,51 found it “evident beyond the need for elaboration that a State’s
interest in ‘safeguarding the physical and psychological well-being of a
minor’ is ‘compelling.’”52 The Court went on to state that “the use of
children as subjects of pornographic materials is harmful to the
physiological, emotional, and mental health of the child. That judgment,
we think, easily passes muster under the First Amendment.”53 Therefore,
states have a paramount interest in preventing child sexual exploitation, and
the limited artistic value of child pornography justified regulating such
content outside the Miller obscenity standard.54 This made Miller’s inquiry
into the average person’s prurient interest, the material’s portrayal of
patently offensive sexual conduct, and the value of the work as a whole
irrelevant in the child pornography context.55 As a result, consistent with
the First Amendment, the government may regulate obscene speech that
satisfies the Miller standard, and depictions of child pornography under
3. Freedom of Speech and the State’s Authority To Regulate Sexually
Explicit Content Are Evolving in the Internet Age
Precedent from Miller and Ferber has been strained as the contours of
freedom of speech have shifted alongside the development and mass
adoption of computer and Internet technology. Like the telegraph, radio,
telephone, and television in previous eras, the growth of the Internet as a
“forum for a true diversity of political discourse, unique opportunities for
cultural development, and myriad avenues for intellectual activity” has
revolutionized mass communication and information systems.56 Nearly
three-fourths of Americans are now online,57 and the federal government
continues to take measures to expand Internet access across the country.58
Recent scholarship indicates that Americans of all ages are online between
ten and fourteen hours per week.59 Each hour one hundred thousand new
websites join the more than two billion pages already on the Internet;60 the
U.S. Government alone maintains more than twenty-four thousand websites
and resources online.61 Computers and the Internet are such prolific
information sources and ubiquitous features of life that one expert claimed
“without a computer in this day and age you can’t work, you can’t
communicate, you can’t function as people normally do in modern
56. 47 U.S.C. § 230(a)(3) (2006); see BRUCE BIMBER, INFORMATION AND AMERICAN
DEMOCRACY: TECHNOLOGY IN THE EVOLUTION OF POLITICAL POWER 7588 (2003); CARLA
G. SURRATT, THE INTERNET AND SOCIAL CHANGE 15 (2001). For an interesting discussion
of the future of the Internet, see generally Symposium, Notes from the New World: The
Future of the Internet, 78 FORDHAM L. REV. 2751 (2010) (introducing “an exchange on
theories of Internet governance”).
57. Internet Users (per 100 people), THE WORLD BANK,
(last visited Sept. 23, 2010)
. In 2009,
seventy-seven million people, including forty-four percent of people living in poverty, used a
public library to facilitate Internet access. Nearly One-Third of Americans Use Library to
Access Internet, MEDIA ACCESS PROJECT (Mar. 26, 2010),
58. See Stephanie Condon, Stimulus Bill Includes $7.2 Billion for Broadband, CNET
NEWS (Feb. 17, 2009, 9:40 AM), http://news.cnet.com/8301-13578_3-10165726-38.html.
See generally The National Broadband Plan: Connecting America, FCC,
(last visited Sept. 23, 2010)
(lauding the benefits of broadband
59. See VICTORIA RIDEOUT ET AL., THE HENRY J. KAISER FAMILY FOUNDATION,
GENERATION M2: MEDIA IN THE LIVES OF 8- TO 18-YEAR-OLDS 2 (2010), available at
http://www.kff.org/entmedia/upload/8010.pdf; Lance Whitney, Average Net User Now
Online 13 Hours Per Week, CNET NEWS (Dec. 23, 2009, 7:30 AM),
60. STONE ET AL., supra note 21, at 345.
61. FED. WEB MANAGERS COUNCIL, PUTTING CITIZENS FIRST: TRANSFORMING ONLINE
GOVERNMENT 1 (2008), available at
62. Matt Richtel, Barring Web Use After Web Crime, N.Y. TIMES, Jan. 21, 2003, at A1;
see U.S. DEP’T OF COMMERCE, A NATION ONLINE: ENTERING THE BROADBAND AGE 3 (2004),
available at http://www.ntia.doc.gov/reports/anol/NationOnlineBroadband04.pdf; JEFFREY I.
COLE ET AL., THE UCLA INTERNET REPORT: SURVEYING THE DIGITAL FUTURE 45 (2000),
available at http://www.digitalcenter.org/pdf/InternetReportYearOne.pdf.
Additionally, the Internet has become an important tool for political and
civic engagement. Technology has driven democracy as millions of people
have used the Internet to educate voters, contribute time and money to
political candidates, and even cast a ballot.63 The Internet now functions as
a modern public square, empowering each user with a virtual printing press
and megaphone to disseminate their views.64 Scholar Lawrence Lessig
described the Internet as “the most important model of free speech since
[America’s] founding,” and noted that “the Net has taught us what the First
Amendment means.”65 He also remarked that “[t]he model for speech that
the framers embraced was the model of the Internetdistributed,
noncentralized, fully free and diverse.”66 Floyd Abrams, a legendary First
Amendment lawyer, has gone so far as to suggest that the Internet obviates
the need for constitutional protection of speech because prior restraint on
publication is no longer viable.67 Like speech in the material world, the
government may not broadly regulate Internet speech without contravening
the First Amendment, but it may regulate online the same obscene speech
that it could regulate in the tangible world.68
As the Internet has exploded in scope and importance, the Supreme Court
has sought to adapt its precedent to the technological age. The Supreme
Court first ruled on government regulation of electronic content in Reno v.
ACLU,69 where it invalidated, on First Amendment grounds, sections of a
law that regulated online speech.70 To protect children online, Congress
passed the Communications Decency Act of 1996,71 which made it a crime
to transmit an obscene or indecent message that, like Miller, “depicts or
describes, in terms patently offensi
ve as measured by contemporary
community standards, sexual or excretory activities or organs.”72 The
Court distinguished Internet speech from other communication, and held
the law unconstitutional because it shielded minors by “suppress[ing] a
large amount of speech that adults have a constitutional right to receive.”73
Five years later, the Supreme Court again ruled on Internet speech
regulation in Ashcroft v. Free Speech Coalition,74 where it rejected a ban on
“virtual” child pornography. The case arose when Congress passed the
Child Pornography Prevention Act of 1996 (CPPA),75 which regulated
computer generated images the Court defined as “virtual child
pornography,”76 as well as images that implied a minor was engaged in a
sexual act.77 The Supreme Court agreed with the erotic entertainers who
had challenged the law,78 and found that the CPPA unduly restricted “the
freedom to engage in a substantial amount of lawful speech.”79 Thus, the
Court applied Ferber in the Internet context, and simultaneously reaffirmed
the government’s sweeping power to regulate real child pornography but
limited power to regulate online speech that is neither obscene nor child
Later in 2002, in Ashcroft v. ACLU (Ashcroft I),80 the Supreme Court
temporarily sidestepped the question of the breadth of the government’s
power to regulate Internet content. In response to Reno,81 Congress had
enacted the Child Online Protection Act (COPA),82 which criminalized
commercial Internet postings deemed “harmful to minors”83 as defined by
the three-part Miller standard.84 Reversing the Third Circuit, the Supreme
Court held that COPA’s use of “community standards” to identify illicit
content, without reference to a specific geographic area, did not alone
render the law in violation of the First Amendment.85 However, the Court
declined to rule whether COPA was overbroad for other reasons, and
remanded the case to the Third Circuit to adjudicate those issues before the
law would take effect.86
72. 47 U.S.C. § 223(d)(1) (1994). In 2003, this language was removed from the statute
and replaced by “is obscene or child pornography.” Pub. L. No. 108-21, 117 Stat. 650, 687 §
603(2) (2003) (codified as amended at 47 U.S.C. § 223 (2006)).
73. Reno, 521 U.S. at 874; see also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60,
74 (1983) (“The level of discourse reaching a mailbox simply cannot be limited to that
which would be suitable for a sandbox.”).
74. 535 U.S. 234 (2002).
75. Pub. L. No. 104-208, 110 Stat. 3009, 3026 (codified as amended in scattered
sections of 18 U.S.C. (1996)).
76. See Free Speech Coal., 535 U.S. at 24142 (citing 18 U.S.C. § 2256(8)(b) (1994)).
77. See id. at 24243 (citing 18 U.S.C. § 2256(8)(d) (1994)).
78. Id. at 243.
79. Id. at 256.
80. 535 U.S. 564 (2002).
81. See supra notes 6873 and accompanying text.
82. Pub. L. No. 105-277, 112 Stat. 2681, 2736 (codified at 47 U.S.C. § 231 (1998)).
83. 47 U.S.C. § 231(a)(1).
84. See Ashcroft I, 535 U.S. at 56970 (citing 47 U.S.C. § 231); supra notes 4647 and
85. See id. at 58586.
86. See id.
The Supreme Court finally settled the issue in 2004 by reaffirming the
central holding in Reno, namely that the government has only limited
authority to restrict online speech. In Ashcroft v. ACLU (Ashcroft II),87 the
Supreme Court affirmed the Third Circuit’s ruling,88 on remand from
Ashcroft I,89 that COPA was unconstitutional because it did not use the least
restrictive means to protect a minor from harmful online speech.90 The
Court found that the government may encourage parents and schools to
limit Internet access,91 but that it may not directly regulate Internet content
without showing that the alternative filtering software was less effective in
preventing harmful material from reaching children.92 In sum, the
government could not take steps to block unprotected speech until it
effectively determined how to separate it from protected speech.93 Ashcroft
II set the standard for when the government may regulate the Internet, but
left open the issue of when the government may entice Americans to
consent to Internet speech regulations in exchange for a voluntary
B. The Theory of Unconstitutional Conditions
While there is agreement that the unconstitutional conditions theory is
needed to “constrain indirect governmental pressure on the exercise of
constitutional rights, no easy or perhaps single rationale” exists to explain
when a condition becomes unconstitutional.94 The idea has been a part of
American jurisprudence for many years, and “has for just as long suffered
from notoriously inconsistent application; it has never been an overarching
principle of constitutional law” equally applied to individual rights and
governmental powers.95 Among varied formulations, the gist of the theory
is that the government may not voluntarily offer a benefit that requires a
citizen to forego a constitutional right in order to take ad
vantage of that
benefit.96 The doctrine pertains to an offer or conferral of a benefit by a
state actor, including a federal court.97
Though the unconstitutional conditions doctrine is centuries old, it
remains difficult to predict when it applies, and, if it applies, when it is
violated. Part I.B of this Note reviews the development and theory of
unconstitutional conditions to discern a method for evaluating the validity
of computer and Internet restrictions as a condition of supervised release.
First, it examines the foundation of unconstitutional conditions theory in
commercial and employment cases. Next, it explores the doctrine’s
development in free speech and prisoner rights cases. Finally, it distills the
leading theories to posit a new framework whereby a condition is
unconstitutional if it too stringently restricts protected speech and if the
government’s offer is coercive or intended to regulate protected speech
1. Unconstitutional Conditions “Doctrine” Arose in Economic Cases and
Developed to Encompass Speech and Individual Rights
The theory of unconstitutional conditions was first articulated around the
dawn of the twentieth century. The Supreme Court gave life to the ideas
behind the theory in Insurance Co. v. Morse,98 where it struck down a
Wisconsin statute that prohibited insurance companies from transacting
business in the state unless they agreed not to use the federal courts.99 The
term “unconstitutional conditions” debuted two years later in a case
reaffirming Morse, when Justice Joseph P. Bradley wrote in dissent that,
“Though a state may have the power, if it sees fit to subject its citizens to
the inconvenience, of prohibiting all foreign corporations from transacting
business within its jurisdiction, it has no power to impose unconstitutional
conditions upon their doing so.”100 The doctrine then laid dormant until the
era of Lochner v. New York,101 when the Supreme Court repeatedly rejected
state attempts to implement restrictive conditions on businesses.102 The
Court initially grounded unconstitutional conditions theory in economic
freedom, but would later dramatically expand the scope of the doctrine.
Two decades after the demise of Lochner, the Supreme Court broadened
the reach of unconstitutional conditions theory to cover individual rights
and free speech. In Speiser v. Randall,103 California offered a property tax
exemption to World War II veterans who signed an oath of loyalty to the
state and federal governments.104 Veterans challenged the exemption on
First Amendment grounds, saying the oath restricted their freedom of
speech.105 The Supreme Court agreed, finding that the exemption was a
government benefit and that the condition improperly infringed on their
cognizable speech rights.106 Thus, the unconstitutional conditions doctrine
became relevant to analyze a government benefit given in exchange for a
personal waiver of an individual’s constitutional right.
In subsequent years, the Supreme Court continued expanding the breadth
of the unconstitutional conditions doctrine. The Court utilized the theory to
strike down conditions on public employment,107 takings of property,108
and receipt of federal funds.109 It also found a condition unconstitutional
where receiving government unemployment benefits burdened religious
exercise110 and where accepting public employment limited procedural due
process.111 Nonetheless, the Court found the government complied with the
doctrine in cases involving federalism,112 the tax code,113 and public
financing of abortion.114 The Court also found unconstitutional conditions
theory inapposite where a law conditioned the receipt of welfare benefits on
a beneficiary consenting to a home visit by a state agency employee.115 In
these varied holdings, however, the Court failed to delineate the
circumstances that would make a condition pass constitutional muster.
2. If Not All Fundamental Criminal Protections May Be Waived, When
Does Offering Early Release from Prison Create an Unconstitutional
As unconstitutional conditions doctrine expanded, its analysis became
pertinent in situations where the government offered a convict a more
lenient punishment, such as supervised release, in exchange for the waiver
of a constitutional right. This section discusses how courts have also
examined a bargain that circumscribes the rights of a criminal or prisoner to
determine whether it presents an unconstitutional condition. The
government may offer a benefit in exchange for a guilty plea,116 but it is
difficult to predict whether it may offer a benefit conditioned on the waiver
of a constitutional right.
a. Waiver of Constitutional Rights in Criminal Cases
The Supreme Court has permitted the waiver of constitutional criminal
protections without becoming entangled in unconstitutional conditions
analysis. As the Court articulated in United States v. Mezzanatto,117 “a
criminal defendant may knowingly and voluntarily waive many of the most
fundamental protections afforded by the Constitution.”118 For example, a
defendant may receive the benefit of a plea bargain in exchange for
waiving, among other things, the right to trial by jury, right against
selfincrimination, and right to confront accusers.119 This may allow the
government to trade a benefit for a right, even if there is unequal bargaining
power, so long as the offer is similar to another choice the beneficiary
faces.120 It is black letter law that “Waivers of constitutional rights not only
must be voluntary but must be knowing, intelligent acts done with sufficient
awareness of the relevant circumstances and likely consequences.”121
Importantly, though, the knowingness, intelligentness, and voluntariness
that are required for a bona fide waiver are each a complicated legal idea
subject to a separate standard; “the relinquishment of the right must have
been voluntary in the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception. Second, the waiver
must have been made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it.”122
Where a convict is aware of the ramifications of his conduct and acts
voluntarily, courts will often uphold the waiver of constitutional criminal
rights outside the reach of unconstitutional conditions doctrine.
However, not all waivers of constitutional rights are acceptable; the
government may not force a prisoner to choose between rights and death.
In United States v. Jackson,123 the Supreme Court held the government
acted improperly to force a choice between exercising the right to trial and
risking capital punishment.124 Congress had passed the Federal Kidnapping
Act,125 which authorized a jury to recommend the death penalty but made
no such provision for someone who pleads guilty or waives the right to
trial.126 The Court affirmed the district court’s holding that the provision
was invalid because “it makes ‘the risk of death’ the price for asserting the
right to jury trial.”127 The Court noted that no matter what the
government’s objective in inducing the waiver, it “cannot be pursued by
means that needlessly chill the exercise of basic constitutional rights.”128
Since Jackson, the Supreme Court has found other limits on the state’s
ability to bargain for a citizen’s constitutional rights, noting that some
protections “are so fundamental to the reliability of the factfinding process
that they may never be waived.”129 For example, the government may not
offer a benefit in exchange for a waiver of the right to have conflict-free
counsel,130 or the right to a speedy trial,131 because such a waiver may
irreparably tip the scales of justice in the go
vernment’s favor. Thus, the
Court has insisted that there are limits on the waiver of a constitutional
right, but has thus far declined to lay down a clear line for determining
when that waiver becomes an unconstitutional condition.
b. Waiver of Constitutional Rights in Prisoner Cases
Just as the Court has set limits on the waiver of constitutional criminal
rights, it has also found a prisoner’s ability to waive constitutional rights
varies based on the level of incarceration. Like criminal defendants,
prisoners subject to harsher punishment have an ascending ability to waive
constitutional rights, which gives the government greater power to offer
conditions on release. While an incarcerated prisoner retains some
constitutional protection, the government may induce an inmate to waive a
right where its penological interest in rehabilitation outweighs the impact
on a convict’s liberty.132 For example, the government may offer leniency
to someone on probation, parole, or supervised release on condition that the
convict waive protection against warrantless searches, where the search
would likely expose evidence of criminal activity.133 A condition may also
be constitutional where the government has a strong interest in mitigating
recidivism and using probation to help a prisoner reintegrate into society.134
The prisoner’s limited power to consent does not taint the condition so long
as it is assented to freely, and the option to reject the condition and remain
in jail is preserved.135 Accordingly, the government’s power to entice
waiver of a constitutional right is at its peak when dealing with an
incarcerated convict, and decreases as the convict is given additional
The government may also offer a benefit in exchange for a prisoner
waiving his right not to speak without creating an unconstitutional
condition. In Ohio Adult Parole Authority v. Woodard,136 an incarcerated
prisoner faced the difficult choice between foregoing parole by exercising
his right to remain silent, or incriminating himself.137 The appellate court
found the condition unconstitutional but the Supreme Court reversed,
holding the doctrine not violated because the condition ga
ve the prisoner a
condition also prevents the government from using its advantage to restrict
rights for a particular group of citizens, which would create a lower class of
rights-holders,197 or enforcing a waiver that harms a third party.198
Consequently, like in the government funding cases,199 a condition’s effect
may be satisfactorily narrow where the government offers a benefit in
exchange for a condition, within its regulatory powers, that it could instead
have imposed directly.200 The third prong is necessary but not sufficient; a
condition that has an acceptable effect will not automatically be
constitutional, but may be if the condition also passes the coercion and
purpose prongs of this Note’s framework.
To summarize this Note’s new three-prong framework, a condition is
unconstitutional where the government coerces a beneficiary into accepting
its offer, or where the government has an improper purpose for pursuing a
condition. However, because the government is less likely to act coercively
where it has a legitimate motive, and vice-versa, the effect prong judges
whether a condition overly restricts protected speech as a backstop for
invalid conditions that satisfy the coercion and purpose prongs. While this
framework is new, courts have already discussed the theory of
unconstitutional conditions in prison and free speech cases. However,
courts have not considered the doctrine in hybrid cases where the
government offers a convict supervised release with a restriction on
computer and Internet access.
c. Using This Note’s New Three-Part Framework To Analyze a Supervised
Release Condition That Limits Access To Technology
Though courts have not so scrutinized a supervised release condition that
circumscribes computer and Internet access, this Note posits that such a
limitation may present an unconstitutional condition because the
government is offering a voluntary benefit conditioned on the waiver of a
constitutional right.201 The government benefit comes in the form of an
offer of supervised release, which it is not obligated to provide because a
criminal conviction forfeits one’s right to liberty until the sentence is
completed.202 Moreover, that offer is a benefit because freedom is
valuable, and accepting supervised release affords a convict more freedom
than incarceration.203 The conditional waiver creates an unconstitutional
conditions concern when the government requires that the convict choose
between accepting the benefit and retaining the free speech rights to which
he is entitled while on supervised release.204 A condition that restricts
Internet speech may violate that right where it needlessly prevents a convict
from accessing the principal modern means for communication and
participation in public life.205 To complete this analysis, Part II reframes
the reasoning of courts that assessed the validity of a computer and Internet
restriction on other grounds to answer the question not yet asked: does an
offer of supervised release with a condition that curbs computer and
Internet use create an unconstitutional condition?
II. APPLYING THE COERCION-PURPOSE-EFFECT FRAMEWORK: IS A
SUPERVISED RELEASE RESTRICTION ON COMPUTER AND INTERNET ACCESS
AN UNCONSTITUTIONAL CONDITION?
Since the dawn of the Internet, courts have wrestled with how to punish
criminals convicted of computer crimes related to child pornography.
Many of these cases present similar facts: law enforcement, whether via tip
or sting operation,206 catches a male possessing or distributing child
pornography.207 Threatened with harsh punishment,208 he pleads guilty and
submits himself for sentencing before a judge.209 The trial judge, with
input from the Probation Office, prosecutor, and defendant, sentences the
convict to serve jail time, followed by a term of super
vised release, with a
condition that restricts computer and Internet access.210 Then the convict
appeals, contending that the trial court abused the discretion allowed by the
sentencing guidelines, and asks the appellate body to strike the supervised
Building on the discussion of the First Amendment and unconstitutional
conditions theory in Part I, Part II analyzes whether a condition of
supervised release that restricts computer and Internet access creates an
unconstitutional condition. It does so first by analyzing the cases that have
considered these conditions, then, second, by recasting these decisions to fit
this Note’s three-prong framework to determine whether a condition is
unconstitutional. First, Part II.A takes up the coercion prong, considering
cases where the government’s conditional offer compelled a convict to
waive a constitutional right and where it did not. Next, Part II.B evaluates
the purpose prong, discussing where the government’s intent in offering a
condition was valid and where it was not. Then, Part II.C assesses the
effect prong, explaining where the condition’s consequence was acceptable
and where it was overbroad.
A. Prong One: When Is a Condition Coercive?
This section discusses the divergent views regarding the coerciveness of
a condition of supervised release that restricts computer and Internet access.
First, it explains that some courts find that the government acts coercively
where a convict cannot realistically reject its conditional offer of freedom
with limited computer and Internet use. Then, it refashions the reasoning of
these courts to fit the coercion prong of this Note’s framework. Next, it
explores the opposing view—that the government does not act coercively
where a convict voluntarily agrees to accept its conditional offer as the price
for liberty, and then again reframes the logic of these latter courts in terms
of the coercion prong of this Note’s framework.
1. A Condition May Be Coercive If the Government Leaves a Convict No
Choice but To Accept the Offer and Restriction
Courts have found that the government may be acting coercively when it
offers a convict a condition of supervised release that restricts all access to
Internet and computer technology. The government purports to offer the
convict a voluntary choice between accepting a lifetime term of supervised
release, without computer or Internet access, and spending more time in
jail.212 However, courts have rejected such absolute limitations, even
where a condition included an exception that allowed computer use for
word processing,213 because a convict may be incapable of balancing his
210. See, e.g., United States v. Sofsky, 287 F.3d 122, 12425 (2d Cir. 2002); Paul, 274
F.3d at 15960; see also supra note 201 and accompanying text.
211. See supra note 8 and accompanying text.
212. See Doe v. Marion Cnty., 566 F. Supp. 2d 862, 87879
(S.D. Ind. 2008)
213. See United States v. White, 244 F.3d 1199, 1205 n.7
(10th Cir. 2001)
modem inside a standard computer may render a restriction absolute). But see Thielemann,
inherent liberty interest with the impact of “lifetime cybernetic banishment”
that forfeits access to the critical technology that has permeated daily
life.214 For example, in United States v. White,215 the U.S. Court of
Appeals for the Tenth Circuit overturned a condition that restricted all
Internet and computer use because it would have made modern life
functionally impossible.216 The court found the condition placed the
convict in a no-win situation where he would no longer be incarcerated but
would gain freedom in a Potemkin village, without the ability to visit a
library, café, or airport.217 Other circuits have followed this reasoning,
rejecting a similar condition because it would have rendered life outside of
prison “exceptionally difficult” by preventing a convict from filing taxes
electronically, engaging in online commerce, and accessing government
resources on the Internet.218 Moreover, the length of a term of supervised
release magnifies the prohibition’s impact, leading courts to reject a lifetime
condition but approve a similar condition of limited duration.219 The
prospect of trading a prison term for life without the use of important
technology has given courts reason to reject a restrictive condition on
A condition that completely restricts computer and Internet access may
be coercive and fail the first prong of this Note’s framework for
unconstitutional conditions. A condition that leaves a convict no functional
choice but to accept is the archetype of altered decision making, as few
would voluntarily choose to forego access to Internet and computer
technology.220 Though the prisoner does get the valuable benefit of
freedom in exchange, the state’s threat to keep a convict imprisoned may be
sufficiently powerful to entice him to agree to give up the modern day
mailbox, telephone, bank, storage cabinet, and key to the world’s combined
knowledge.221 This makes the condition arguably similar to pleading guilty
to avoid the threat of capital punishment, where a convict cannot rationally
weigh the true costs, benefits, and impact of a f
choice.222 Some courts would likely find that a condition would be
unconstitutional where a convict’s will would be overborne by the state’s
alluring offer, leaving him powerless to reject a lifetime condition and
constructively coerced into accepting it.
2. However, a Condition May Not Be Coercive If a Convict Knowingly and
Voluntarily Accepts the Bargain
Under other circumstances, courts have upheld the government’s offer of
conditional release where the convict made an informed decision about
whether to remain incarcerated or accept freedom with a restriction on
computer and Internet use. For example, in United States v. Daniels,223 the
U.S. Court of Appeals for the Ninth Circuit accepted a lifetime term of
release that limited computer and Internet use because the government had
offered the convict the choice of either remaining in lockup or gaining
freedom with a condition, and the convict expressly, knowingly, and
voluntarily accepted.224 The court noted that using contract principles to
evaluate a condition would protect a convict because a voluntary agreement
would be ineffective unless the government fully informed the convict
about the agreement’s details and assent was not forced.225 Moreover,
understanding the terms of a condition had put the convict on notice, and
vindicated the imposition of a technology condition as punishment for
violating more lenient terms of release.226 Other circuits have approved an
absolute restriction for a limited duration, finding a convict could reject the
benefit because, though “computers and the Internet have become
significant and ordinary components of modern life as we know it, they
nevertheless still are not absolutely essential to a functional life outside of
prison.”227 While a convict could not easily reject the offer of a valuable
conditional benefit, courts have found meaningful distinctions between
voluntary and coerced acceptance.
Recasting the reasoning of courts that have upheld a limit on computer
and Internet use in light of this Note’s framework, and relying on contract
law, a voluntary waiver would likely pass the coercion prong where a
convict has the power to reject the benefit and condition. This would allow
the convict to choose the option he deems in his best interest, which could
be conditional release, and permits a convict to trade speech rights for
liberty while saving taxpayers the cost of incarceration.228 Following this
paradigm, the court best protects a prisoner’s rights by ensuring he is fully
informed and understands the potential long-term impacts of any
agreement. In this vein, a knowledgeable convict who voluntarily chose to
accept the benefit of release and corresponding burden may be more like an
organization electing to accept conditional federal funds, and the court may
determine coercion was not involved.229 This analogy justifies courts that
have analyzed a supervised release condition from a contract perspective,
and found no coercion in a voluntary agreement between the state and
B. Prong Two: When Is the Government’s Purpose Improper?
Like the coercion issue, courts have split on analyzing the government’s
motive for offering a condition of release. This section highlights the
decisions of courts that have ruled on the validity of the government’s
purpose for offering a condition of supervised release that limits technology
access. First, it explains that some courts find the government’s purpose
may be improper where a condition is unrelated to the crime and shows the
government intends to regulate speech indirectly. Then, it reframes the
reasoning of these courts to fit the purpose prong of this Note’s framework.
Next, it addresses the opposite view, juxtaposing the position that the
government’s purpose may be valid where it acts to boost public safety and
offers exceptions to a condition. Finally, it recasts the reasoning of courts
that have upheld a condition to fit the second prong of this Note’s
unconstitutional conditions framework.
1. The Government May Have an Inappropriate Motive Where It Uses a
Condition To Regulate Protected Speech Indirectly
Courts have found that the government has an improper purpose for
restricting computer and Internet use where the condition regulates activity
unrelated to the underlying crime. The government bears a high burden to
articulate a legitimate reason for pursuing an expansive condition, and must
fully explain the basis for the condition such that it does not leave the
convict speculating about the state’s intention.230 Courts ha
ve found this
standard unmet where there was an insufficient nexus between the condition
and the child pornography crime for which it was imposed.231 For example,
in United States v. Peterson,232 the U.S. Court of Appeals for the Second
Circuit, in a bank larceny case, rejected a condition that prevented a convict
from purchasing, using, or possessing a computer because the condition
pertained to a previous sex offense.233 The court reasoned that the failure to
pursue a condition in an earlier case did not excuse its irrelevance in a later
case where it regulated a convict’s employment that was unrelated to the
reason for the sentence of supervised release.234 Other circuits have used
similar reasoning, finding the government had an improper motive where a
supervised release condition given for a child pornography crime sought to
limit access to legal adult pornography,235 where technology was not an
integral part of the crime,236 or where the ban would prevent the convict
from securing employment.237 While the government may pursue
supervised release for a variety of reasons, it must narrowly tailor the
condition to the crime that gives rise to the particular punishment.
A lifetime term of supervised release that limits computer and Internet
access but does not include an exception might also show the government
has an improper purpose for pursuing the condition. For example, courts
have been uncomfortable with a lifelong condition imposed as part of
supervised release because of the unknown future consequences and
potential to limit the speech of a convict who is later rehabilitated.238 As a
result, some courts have found the government evinced an invalid purpose
by not including an exception that would allow a probation officer, at her
discretion, to grant the convict computer and Internet access in the
future.239 Though including a Probation Office exception could create
concerns about the court’s power to delegate sentencing,240 it may also
show that the government is pursuing the condition in good faith and not
seeking to limit speech indirectly.241 Incorporating an exception that allows
a convict computer and Internet access may not make a condition per se
acceptable, but may ease a court’s reluctance to find the government
harbored a valid purpose for pursuing a condition.
Recasting the reasoning of courts that have rejected a technology access
condition to fit the second prong of this Note’s framework, a condition that
restricts activity unrelated to the crime, or lacks an exception, may fail
because it indicates an illegitimate government purpose. Such a condition
may show that the government seeks to restrict protected speech it could
not limit directly, especially where a condition would not be likely to
uncover evidence of a crime, or enhance the effectiveness of the prison
release system.242 This could make the government’s purpose for
promulgating a condition invalid because it would not show a connection
between the state interest in the restriction and the crime.243 Likewise, a
condition that relates to the crime, or includes an exception, would show
that a restriction is constitutional because it is germane to the need for
supervised release and not an attempt to censor speech.244 Other courts
have found, however, that the state has a valid purpose for a condition that
restricts access to technology and enhances public safety.
2. But, the Government’s Intent May Be Valid Where It Offers a Condition
To Protect the Public and Provides Exceptions To Allow Computer and
Some courts have found the government’s purpose is proper where a
condition of supervised release is meant to protect the public and assist in a
convict’s rehabilitation. For example, a speech-limiting condition has been
upheld where it related to the crime and where the government showed how
it would enhance public safety or assist reintegration into society.245 Much
like the reasoning in Ferber,246 those courts allowed an incidental b
on the First Amendment because of the damage inflicted on society by child
pornography, and the frequency of offender recidivism.247 This danger also
justified a lifetime term of release,248 and restricted access to adult
pornography, where the government showed a relationship between the
offense, the condition, and protecting children.249 Where the government
can rationally connect the crime and punishment, it can likely show a valid
purpose for offering a condition of supervised release.
Courts have also found that the government’s motivation for a condition
was proper where it provided an exception to the restriction that limited its
scope or duration. For example, the Third Circuit has rejected a lifetime
term of supervised release with computer and Internet restrictions, but has
accepted a substantially similar condition as part of a shorter term of
release.250 The court reasoned that a condition of limited duration left open
the possibility that a rehabilitated convict may regain speech rights.251
Additionally, courts have found the government had a proper purpose
where it offered an exception that allowed the Probation Office to give prior
approval for a convict to use a computer and the Internet, even for a lifetime
condition, reasoning that the exception showed that the government did not
intend to restrict speech unnecessarily.252 Similar to the Probation Office
exception, other courts have supported a condition that allowed a convict to
view Internet content that had passed through a filter because the exception
showed that the government’s purpose was to restrict inappropriate speech,
rather than prevent speech.253 Including an exception to a supervised
247. See United States v. Brigham, 569 F.3d 220, 23235 (5th Cir.), cert. denied, 130 S.
); Crandon, 173 F.3d at 127; cf. McKune v. Lile, 536 U.S. 24, 41 (2002)
(weighing rights and preventing recidivism). For a disagreement about the rates of
recidivism, see United States v. Russell, 600 F.3d 631, 640
(D.C. Cir. 2010)
248. See United States v. Cope, 527 F.3d 944, 952 (9th Cir.), cert. denied, 129 S. Ct. 321
(2008); United States v. Hayes, 445 F.3d 536, 537
(2d Cir. 2006)
249. Compare United States v. Thielemann, 575 F.3d 265, 274
(3d Cir. 2009)
adult pornography led to contact with minors), cert. denied, 130 S. Ct. 1109 (2010), and
United States v. Bee, 162 F.3d 1232, 1235 (9th Cir. 1998) (finding speech condition would
curb sexual urges), with United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002) (per
curiam) (concluding ban on any pornography was unrelated to child pornography crime); see
also supra note 235 and accompanying text. A condition that limits Internet use may relate
to the crime even if a computer was not used in its commission. See, e.g., United States v.
Moran, 573 F.3d 1132, 113941
(11th Cir. 2009)
, cert. denied, 130 S. Ct. 1879 (2010).
250. Compare United States v. Voelker, 489 F.3d 139, 148
(3d Cir. 2007)
lifetime term of supervision) with Thielemann, 575 F.3d at 27778 (allowing ten-year term)
and Crandon, 173 F.3d at 125, 12728 (allowing three-year term). See also United States v.
Heckman, 592 F.3d 400, 409
(3d Cir. 2010)
(“We do not hold that limited Internet bans of
shorter duration can never be imposed as conditions of supervised release for this type of
251. See Thielemann, 575 F.3d at 278.
252. See, e.g., Russell, 600 F.3d at 63839 (surveying Parole Office exception cases);
United States v. Stults, 575 F.3d 834, 85556
(8th Cir. 2009)
, cert. denied, 130 S. Ct. 1309
(2010); United States v. Rearden, 349 F.3d 608, 62021
(9th Cir. 2003)
cases including Probation Office exception).
253. See, e.g., United States v. Lifshitz, 369 F.3d 173, 193
(2d Cir. 2004)
; United States
v. Holm, 326 F.3d 872, 878
(7th Cir. 2003)
; United States v. White, 244 F.3d 1199, 120607
(10th Cir. 2001)
release condition allows the government to show that it is pursuing the
condition in good faith to protect the public, rather than regulating protected
Refashioning the reasoning of courts that have upheld a limit on
computer and Internet use in light of this Note’s framework, a condition of
supervised release promulgated to protect the public, which includes an
exception, may indicate valid government intent and satisfy the purpose
prong. The government has the authority to regulate activity that harms the
public, and it is empowered to maintain the prison release system.254 The
government may also add a condition to assist in the regulation of child
pornography where it can show it possesses a germane, neutral, and
noncensorial interest in the restriction.255 Therefore, where the government
acts pursuant to this authority, its purpose is likely proper because its
primary intent is not regulating speech. Additionally, the government may
harbor multiple bona fide motives for offering supervised release with a
technology restriction,256 and the potential for a hidden improper purpose
may not automatically render a condition unconstitutional.257 As a result, a
condition may be constitutional where the government, by including an
exception to permit speech on terms it deems not harmful to the public,
demonstrates intent beyond suppressing unpopular speech.258
C. Prong Three: When Is a Condition’s Effect Overly Restrictive?
As courts have split on the propriety of the government’s motivation for
pursuing a restrictive condition, so too have they diverged on whether a
condition limits speech too strictly. This section focuses on the opinions of
courts that have discussed when a supervised release condition that limits
computer and Internet access has the effect of too broadly restricting
speech. It first outlines the view that a condition may be unconstitutional
where it indiscriminately limits access to protected speech. Then, it molds
the reasoning of courts that have rejected such a condition to fit the effect
prong of this Note’s framework. Next, it examines the opposing viewpoint
that a condition may be constitutional where it harnesses technology to
minimize First Amendment intrusion and protect the public. Finally, it
recasts the reasoning of these courts to fit the third prong of this Note’s
framework for unconstitutional conditions.
254. See supra notes 3236, 193 and accompanying text.
255. See supra notes 192, 24549 and accompanying text.
256. See, e.g., New York v. Ferber, 458 U.S. 747, 758 & n.9 (1982) (protecting children);
Morrissey v. Brewer, 408 U.S. 471, 477 (1972) (saving taxpayer dollars).
257. See United States v. Am. Library Ass’n, 539 U.S. 194, 211 (2003) (plurality
opinion) (approving condition where censorship was allegedly intended); Rust v. Sullivan,
500 U.S. 173, 178 (1991) (upholding condition purported to limit abortion access).
258. See supra notes 15859, 252
and accompanying text.
1. A Condition’s Effect May Be Too Restrictive If It Broadly Limits Access
to Protected Speech
Some courts have held that the effect of a condition of supervised release
is too restrictive where it proscribes access to protected speech, especially
where the limitation has potentially infinite breadth. As the Tenth Circuit
found in United States v. White,259 a condition that restricts computer and
Internet access, in order to limit a convict’s access to online child
pornography, may also prevent him from obtaining a weather forecast,
reading a newspaper, or taking advantage of the Internet’s vast wealth of
knowledge.260 Other circuits have found the reasoning in White persuasive,
noting that such a condition may slow a convict’s rehabilitation by vitiating
his opportunity to engage in appropriate online speech or obtain an
education.261 In the extreme, an inartfully worded condition could prevent
the convict “from watching any movie on his computer that had children in
it . . . [or using] a computer to send his own young relatives birthday
cards.”262 Additionally, courts have rejected a condition that restrains
access to technology because its scope may expand over time and become
unnecessarily harsh as society increases its adoption of Internet and mobile
computing technology.263 They have also noted that, following current
trends, future content may only be available online and avenues for civic
participation would be foreclosed for a convict who cannot access the
Internet.264 Moreover, a condition that limits technology because of a child
pornography crime may have a relatively more restrictive effect than a
similar condition imposed for another crime. For example, where a fraud is
committed over the telephone or through the mail, a condition would be
invalid where it restricted subsequent use of the telephone or postal
service.265 Likewise, where a publication violates an obscenity law, a
condition that limited access to printed material would also be invalid
because of the impact on free speech;266 as courts have noted, the
government may not limit access to online speech any more than it could
limit access to speech in the tangible world.267 Where a condition
indiscriminately and disproportionately prevents a convict from accessing
protected speech, the condition’s effect may be impermissibly broad.
An expansive condition that prevented access to a bevy of protected
speech without concomitant benefit to public safety would most likely have
an overbroad effect and fail the third prong of this Note’s unconstitutional
conditions framework. Even where the condition was circumscribed with
narrowly tailored restrictions, the effect of a technology restriction may
increase as the condition becomes more commonplace and more released
convicts accept a world without Internet.268 This would reduce the
aggregate amount of online speech and could provide dangerous precedent
with potential to harm society’s collective ability to exercise free speech
rights,269 minimize exposure to different opinions, and potentially remove
controversial viewpoints from the marketplace.270 Moreover, a limit on
computer and Internet use could drive a wedge between people excluded
from modern technology and those who use it, which could exacerbate
differences in living conditions over the duration of the condition.271 Such
a restriction may also undermine opportunities to participate in a vibrant
online community, whether dedicated to social change, shopping, or simply
playing games.272 Where a supervised release condition broadly restricts
access to modern technology, a court may find the condition
265. See, e.g., United States v. Voelker, 489 F.3d 139, 145 & n.3
(3d Cir. 2007)
316 F.3d at 737; United States v. Peterson, 248 F.3d 79, 83
(2d Cir. 2001)
(per curiam). But
see Russell, 600 F.3d at 640 (Henderson, J., concurring) (comparing computer ban to
revocation of driver’s license for vehicular homicide).
266. See, e.g., Voelker, 489 F.3d at 145; United States v. Sofsky, 287 F.3d 122, 126 (2d
Cir. 2002); supra notes 4347 and accompanying text (reviewing Miller and speech
267. See, e.g., Voelker, 489 F.3d at 145; Sofsky, 287 F.3d at 126; Peterson, 248 F.3d at
83; see also supra note 68 and accompanying text (noting coterminous limit on online and
printed speech regulation).
268. See supra note 195 and accompanying text.
269. See United States v. Holm, 326 F.3d 872, 878
(7th Cir. 2003)
; supra notes 19598
and accompanying text.
270. See supra notes 15459 and accompanying text (discussing danger of speech
271. See Holm, 326 F.3d 872, 878
(7th Cir. 2003)
; supra notes 19798 and
accompanying text (highlighting constitutional castes). An analogous, though non-invidious,
rift occurs as a younger generation adopts new technology that an earlier generation finds
difficult to comprehend.
272. See RIDEOUT ET AL., supra note 59 (categorizing online activities); Whitney, supra
note 59 (same); supra note 63 and accompanying text (examining political engagement
2. Nevertheless, a Condition’s Effect May Be Permissibly Restrictive If It
Minimally Limits Speech While Enhancing Public Safety
Even where a condition constrained a convict’s ability to avail himself of
protected speech, courts have found the limitation justified because of the
need to protect the public from egregious offenders. For example, in
United States v. Paul,273 the U.S. Court of Appeals for the Fifth Circuit
explicitly rejected the Tenth Circuit’s reasoning in United States v.
White,274 which had held that a condition was invalid where it inhibited
access to online news, weather, and research.275 Instead, the Fifth Circuit
found that a condition may be acceptable where the convict had used the
Internet to solicit physical contact with a minor and the condition’s
deterrent effect justified proscribing online content; on balance the public
benefit from reduced recidivism and enhanced safety, combined with a
sufficient connection between the crime and punishment, outweighed First
Amendment concerns.276 Other courts have found the reasoning in Paul
persuasive, upholding a limit on computer and Internet access where a
convict used those technologies to facilitate direct child exploitation.277
Thus, infringement on First Amendment rights may be permissible where
necessary to ensure the public is safe from sex offenders.
Courts have also supported a supervised release condition that adopts
exceptions to add precision and narrow the scope of its limitations. As
discussed earlier, including an exception that authorizes the Probation
Office to supervise a convict’s access to the Internet shows good faith while
mitigating the heavy-handed effect of a ban and minimizing First
Amendment intrusions.278 Going a step further, courts have favored a
condition that employed computer-monitoring or Internet-filtering
technology to perforate a condition, thereby affording a convict online
access without abetting illegal activity.279 In some cases, courts have even
required the convict to pay the subsequent monitoring and filtering cost.280
While acknowledging that filtering or monitoring may be no more effective
or enforceable than prohibiting Internet access,281 courts have noted that
harnessing technology may enhance a condition’s deterrent effect and
facilitate a subsequent search of the content he accessed by enabling the
government to view and inspect, remotely or in person, a convict’s
computer activity.282 Technology could also be used to revise the condition
later to ensure it remains effective and narrowly tailored.283 These
measures may also help bridge the gap between protecting the public and
fostering normal participation in the modern world.284 As Justice John Paul
Stevens noted, filters may succeed at “protecting minors from sexually
explicit Internet materials as well or better than attempting to regulate the
vast content of the World Wide Web at its source, and at a far less
significant cost to First Amendment values.”285 Courts favorably view
efforts to utilize technology to narrowly tailor a condition’s effect such that
it limits encroachment on a convict’s protected speech and prevents
Recasting the reasoning of courts that have upheld a limit on computer
and Internet use to fit this Note’s new framework, the effect prong may be
satisfied where a condition utilizes technology to reduce First Amendment
infringement, and enhance public safety. A narrowly tailored condition that
uses technology to constrain improper activity may be acceptable simply
because it strengthens public safety and protects children from
exploitation.286 Further, using technology to filter and monitor Internet
content may be the most efficient method of restricting content without
creating an unconstitutional condition,287
and strikes the optimal balance
between ensuring safety and allowing speech.288 Including an exception to
allow for future modification of the condition can also prospectively
prevent an unconstitutional condition from developing later. Moreover,
tailoring in each case could facilitate government evenhandedness that
equalizes the ability of convicts and non-convicts to exercise freedom of
speech without harming society.289 Finally, instituting a monitoring regime
to search a convict’s computer would follow unconstitutional conditions
precedent in prisoner cases, where courts have upheld a condition of release
that required a convict to consent to a search aimed at exposing evidence of
criminal activity.290 A condition of supervised release equipped with
measures to minimize potential over-regulation of speech would likely have
a restrained effect and satisfy the effect prong of this Note’s framework for
Part II illuminated the cases where courts have ruled on a condition of
supervised release that restricted access to technology without discussing
unconstitutional conditions theory. Then it recast the reasoning of those
courts to evaluate this Note’s framework for unconstitutional conditions,
examining in turn the arguments as they corresponded to the coercion,
purpose, and effect prongs. Part III takes up this Note’s framework to
resolve the conflict in Part II, articulating when a restriction on computer
and Internet access, as part of supervised release, is a constitutional
III. THE GOVERNMENT MAY OFFER SUPERVISED RELEASE, WITH A
CONDITION THAT RESTRICTS TECHNOLOGY ACCESS, WITHOUT CREATING
AN UNCONSTITUTIONAL CONDITION
A condition of supervised release that restricts computer and Internet
access will often pass this Note’s unconstitutional conditions framework.
First, rejecting traditional tests for coercion and evaluating it according to
contract principles, a condition fulfills the first prong if a convict knowingly
and voluntarily accepts the government benefit and the corresponding rights
burden. Second, a condition passes the purpose prong if the restriction
relates to the crime, and an exception to the condition shows the
government’s intent goes beyond regulating speech. Finally, a condition
satisfies the effect prong by using defense as good offense; a constitutional
condition employs filtering and monitoring technology to minimize First
Amendment infringement and enhance the deterrent effect of a condition,
rather than limiting technology use.
288. See Kreimer, supra note 22, at 134751. This balance could be struck by modifying
a convict’s Internet hardware to make it more like an information appliance than a personal
computer. See generally ZITTRAIN, supra note 279, at 5760 (contrasting centralized control
and what Professor Zittrain terms generative platforms).
289. See supra notes 19798 and accompanying text.
290. See supra notes 133, 282 and accompanying text; see also United States v. Miller,
594 F.3d 172, 188 n.10
(3d Cir. 2010)
(declining to challenge search condition).
A. A Condition Fulfills the Coercion Prong, Viewed Through Contract Law,
Where a Convict Knowingly and Voluntarily Accepts the Conditional Offer
Taking up the first prong of this Note’s framework, the difficulty of
discerning when a government offer of a voluntary benefit becomes
coercive undermines the value of the analysis. For many years, courts and
scholars have sought to delineate when a government offer is
unconstitutionally coercive.291 However, despite numerous efforts, there
remains no clear test.292 For example, past attempts failed at categorizing a
valid condition based on a right/privilege or penalty/nonsubsidy
distinction,293 or describing an invalid condition as one that is improperly
coercive.294 As a result, the task of demarcating when a convict
constructively cannot reject a government offer of supervised release,
though he is actually empowered to reject that offer, is exceedingly difficult
and unworthy of the effort. Moreover, incorporating a court’s subjective
understanding of the underlying ability of a convict to reject an offer creates
an opportunity for inconsistency, allowing a judge to identify coercion
using Justice Potter Stewart’s famous line for spotting pornography: “I
know it when I see it.”295 If that takes place, case law precedent will
become more muddled, while a definition for coercion will be no clearer,
and judges will still lack a tool for determining when a condition is
To avoid ends-oriented analysis, and the thorny problem of defining
coercion, it is best to evaluate the first prong of this Note’s framework
using contract law principles. Though contract theory cannot fully capture
the special power imbalance that occurs when the government offers a
convict a voluntary benefit, it does offer a cogent and doctrinally consistent
lens for viewing the acceptance of an offer.296 Unlike issues with
indentifying coercion, there is agreement that a contract is valid where both
parties assent knowingly, intelligently, and voluntarily.297 Courts have
consistently used contract law to analyze agreements between the
government and a criminal, including situations where the government
offered a more lenient punishment in exchange for a convict waiving a
constitutional right.298 Courts have also used the concepts of knowingness,
intelligentness, and voluntariness to separate cases where the government
improperly forced a convict to accept an offer from cases where the
government merely made it hard for the convict to reject the offer.299
Similarly, courts should have no problem using these principles to evaluate
291. See supra notes 182, 18486 and accompanying text.
292. See supra notes 182, 18486 and accompanying text.
293. See supra notes 17980 and accompanying text.
294. See supra note 181 and accompanying text.
295. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). It was not
until Miller that the Supreme Court identified a clear line for obscenity. See supra notes
4347 and accompanying text.
296. See supra note 189 and accompanying text.
297. See, e.g., supra notes 11722, 165 and accompanying text.
298. See supra Part I.B.2 (explicating prisoner case precedent).
299. See supra notes 12022
and accompanying text.
whether the government is coercive when it voluntarily offers supervised
release in exchange for a convict waiving some of his right to free
speech.300 Therefore, contract principles can be applied effectively to
evaluate the government’s offer of supervised release and determine when a
condition becomes unconstitutionally coercive.
Analyzing a condition through the contract paradigm creates a
meaningful test for resolving whether the government’s offer of supervised
release with a technology restriction presents an unconstitutional condition.
As a threshold matter, the government must fully apprise a convict of the
consequences of accepting release, including the details and length of a
condition, to mitigate the risk that a convict’s wishes will be overborne and
decision-making process altered.301 An informed convict is thus
empowered to reject any government benefit, no matter how valuable, once
he can rationally weigh the options and determine his best interest.302
While the restriction may be harsh, the vast body of contract and
unconstitutional conditions case law protects a convict by rendering
unenforceable any agreement that harms a third party or where assent was
forced.303 Therefore, a condition passes the coercion prong of this Note’s
framework where an informed convict knowingly and voluntarily accepts a
government benefit and burden.
Finally, courts can minimize concerns of an unduly coercive condition by
drafting and interpreting a technology-limiting condition to comport with
modern life. For example, where the notion of Internet “access” once
meant the ability to take one of the relatively few on-ramps to the
“information superhighway,” in today’s ubiquitous Wi-Fi world, “access”
should mean an actual connection to the Internet. This would resolve the
White court’s fears of a convict being restricted from entering a library,
coffee shop, or airport, while rejecting the premise that Internet use is a
modern convenience that may be restricted merely because it is inessential
to life.304 Moreover, modern technology may be powerful, but many
people are able to live without convenient access to a computer or the
Internet, and a lifetime jail term remains distinguishable from capital
punishment.305 A convict should be similarly entrusted to choose to live
without such technology by exchanging access to it for increased liberty.
However, to bolster protection against the government coercing a convict
into accepting a condition that broadly limits technology access, the
government must also show it does not seek to regulate speech indirectly.
300. See supra note 189 and accompanying text.
301. See supra notes 18788 and accompanying text.
302. See supra notes 189, 222 and accompanying text.
303. See supra notes 198, 225 and accompanying text.
304. See supra notes 21517, 22627 and accompanying text.
305. See supra notes 28, 5761 and accompanying text.
B. A Condition Satisfies the Purpose Prong Where the Government Seeks
To Boost Public Safety and Includes Exceptions To Allow Access to
A condition that restricts computer and Internet access satisfies the
purpose prong of this Note’s unconstitutional conditions framework where
the government intends to protect the public rather than indirectly regulate
protected speech. There is no doubt that production, distribution, and
possession of child pornography inflicts tremendous and lasting harm on
children and society.306 The damage is so severe that the Supreme Court
held the First Amendment does not protect material that depicts sexual
conduct by minors and permitted content regulation outside the Miller
obscenity standard.307 Especially as modern technology has made it easier
for deviants to spread injurious content, the government deserves deference
when it promulgates a condition of supervised release that aims to curb
trafficking in such destructive material.308 Accordingly, courts should
allow the government to offer a condition which it deems necessary to
reduce recidivism by a released convict, a foundational state charge,309 and
should presume that a condition that limits access to technology is
constitutional where it relates to a child pornography crime that was
committed using a computer.
Presuming the government acts with a proper purpose squares with the
approach taken by courts to date. While some courts have scrutinized the
government’s reason for a condition,310 more often courts have made
conclusory statements approving a condition because the government said it
sought to improve public safety.311 However, by specifically stating that it
is deferring to the government because protecting children from online
predators is paramount, a court can follow First Amendment precedent
related to Internet speech.312 This also allows the court to bless the state’s
purpose without giving short shrift to unconstitutional conditions doctrine.
However, courts should not operate as a rubber stamp when the
government acts with an improper purpose by seeking a condition unrelated
to the crime. To minimize potential coercion in these situations, the
government should shoulder the burden to articulate some reason why a
condition will enhance the safety of the public vis-à-vis a convict released
from prison.313 As the Second Circuit has stated, the government will
satisfy this burden, and demonstrate it acts with proper purpose, where it
can make a logical connection between the condition, public safety, and the
child pornography crime.314 Other circuits have found this approach
306. See supra note 17 and accompanying text.
307. See supra notes 4855 and accompanying text.
308. But see supra note 230 and accompanying text.
309. See supra Part I.B.2 (balancing prisoner rehabilitation, early release, and public
310. See supra Part II.B.
311. See supra notes 6993 and accompanying text.
312. See supra notes 4860 and accompanying text.
313. See supra note 230 and accompanying text.
314. See supra notes 23234
and accompanying text.
persuasive, adding the important caveat that the government will fail to
meet its burden, even where it expresses a public safety rationale, where a
condition restricts employment, speech, or association that bears minimal
relationship to the crime.315 The government’s purpose will also be suspect
where it seeks a condition because of a prior offense, or a crime committed
without utilizing the Internet.316 In practice, this will confine the
government to pursuing a condition where it has a valid interest in
protecting the public or maintaining the prison release system.
To ensure a court finds that the government’s desired condition is
constitutional, in part because it meets the purpose prong, the government
should show good faith by including an exception that affords a convict
computer and Internet access in controlled situations. Of course, a court
could interpret a condition that restricts access to technology as an attempt
by the government to regulate free speech indirectly.317 However, the
government can indicate that it aims for more than indirect regulation by
authorizing the Probation Office to permit a convict to engage in
appropriate online speech,318 limiting the duration of the condition,319 or
employing methods of Internet filtering or computer-monitoring to allow
reasonable access to technology.320 This hews closely to the Second
Circuit’s approach, which protects minors, offers a convict hope for the
future, and expands the body of speech available to all Internet users.321
Even if the government has a proper purpose for a condition and does not
coerce a convict, its offer must still be evaluated under the third prong of
this Note’s framework for unconstitutional conditions.
C. A Condition Meets the Effect Prong Where It Protects Children While
Using Technology To Maximize Free Speech
A condition passes the effect prong where its impact safeguards children
from online predators without unnecessarily restricting access to
constitutionally protected speech. There is little doubt that a condition that
restricts computer and Internet use might inhibit access to legitimate
content including online news, weather, and financial data.322 That
condition is also apt to restrict a convict from discussing topics unrelated to
his crime and reduce his ability to participate in a vibrant forum for modern
speech.323 However, a criminal convict forfeits his full complement of
constitutional rights and empowers the government to enact regulations to
prevent recidivism.324 Given an all-or-nothing choice, courts would be
better to continue following the Fifth Circuit’s approach, expressed in
315. See supra notes 23537 and accompanying text.
316. See supra note 234 and accompanying text.
317. See supra notes 24243 and accompanying text.
318. See supra note 252 and accompanying text.
319. See supra note 250 and accompanying text.
320. See supra note 253 and accompanying text.
321. See Correll, supra note 284; supra notes 27985 and accompanying text.
322. See supra notes 25960 and accompanying text.
323. See supra notes 26164 and accompanying text.
324. See supra notes 132, 202 and accompanying text.
United States v. Paul: restricting the internet access of an online child
pornography convict is a necessary consequence to guarding against
another offense.325 This makes the condition pass the third prong because
its primary effect provides a prophylactic against illegal activity that
outweighs the harm of reduced First Amendment rights.
However, the government should simultaneously adopt the Second
Circuit’s approach to supervised release by harnessing Internet-filtering
technology to minimize the infringing effect of a condition.326 This system
could use whitelisting to permit access to news, weather, finance,
education, and other valuable websites, and simultaneously blacklist
obviously inappropriate content, such as websites that feature underage
subjects.327 It could also take advantage of rapidly emerging technologies
such as Geo-ID and next generation filtering methods,328 and follow the
trend toward appliancization that is changing the online experience.329 This
would create an intermediate zone where a convict would have the
opportunity to participate in the electronic public square, but the
government would simultaneously be able to prevent him from using that
access to recidivate.330 The government could update technology as it
develops, ensuring that the filters are revised to have the least possible
impact on protected speech,331 and tweak the condition as the vagaries of
the communications and technology industries play out while the convict is
serving his prison term.
To complement a content filter, which leaves open the possibility that a
convict will ignore or evade a condition,332 the government should follow
the Tenth Circuit by requiring a convict to register computer and Internet
devices and give prior consent to electronic searches.333 This would allow
the government to execute the search in person, or use electronic search
technology, and vary the level of intrusiveness depending on the needs of
law enforcement.334 Requiring consent would be consistent with the line of
unconstitutional conditions cases which permit the government to offer
conditions that are likely to uncover evidence of criminal activity.335 Just
as parole offers a convict the opportunity to prove he is ready for release
325. See supra notes 27377 and accompanying text.
326. See, e.g., United States v. Johnson, 446 F.3d 272
(2d Cir. 2006)
; United States v.
Balon, 384 F.3d 38 (2d Cir. 2004); United States v. Lifshitz, 369 F.3d 173
(2d Cir. 2004)
United States v. Sofsky, 287 F.3d 122 (2d Cir. 2002); United States v. Peterson, 248 F.3d 79
(2d Cir. 2001)
(per curiam). See generally Correll, supra note 284 (noting Second Circuit’s
327. See supra note 279 and accompanying text.
328. See supra note 279 and accompanying text.
329. See supra note 288 and accompanying text.
330. See supra notes 64, 284 and accompanying text.
331. See supra notes 92, 283 and accompanying text.
332. See supra note 281 and accompanying text.
333. See, e.g., United States v. Vinson, 147 F. App’x 763 (10th Cir. 2005); United States
v. Walser, 275 F.3d 981
(10th Cir. 2001)
; United States v. White, 244 F.3d 1199
. See generally Janik, supra note 284 (describing Tenth Circuit’s approach).
334. See supra note 282 and accompanying text.
335. See supra note 290
and accompanying text.
from prison, these exceptions would allow a convict to prove he is capable
of abstaining from cavorting in the Internet’s darkest corners.336 Instituting
random electronic checks would also add redundancy to the system and
facilitate filter revisions.337 While enforcement will be difficult no matter
what method is used, affording a convict a supervised means for accessing
the Internet is more likely to encourage appropriate use, and discourage the
convict from viewing the unfiltered Internet at a library.338 Further,
funneling the convict’s Internet access into places where law enforcement
can oversee the activity provides real-time feedback to ensure the condition
remains tailored to enhance public safety, aid rehabilitation, and ease
reintegration—the ultimate goal of supervised release.339 This rejection of
broad limits without exception also acknowledges the multifaceted nature
of human beings online;340 while sex offenders who remain focused on
destroying young lives should be monitored closely and punished severely,
others with a divertible interest in a diversity of topics should be allowed to
use computers and the Internet to partake in the positive change and
previously inconceivable advances that technology has achieved throughout
the world. Therefore, implementing a regime of supervised release that
builds on technology to allow a convict appropriate access to the Internet
without risking the safety of children has a sufficiently limited effect to
comply with the third prong of this Note’s framework for unconstitutional
Modern technology and the Internet have brought the world closer
together by providing the means for inexpensive and instantaneous
communication. However, the incredible power of these tools has wrought
serious consequences—some segments of the Internet have become havens
for child pornographers who traffic in the exploitation and victimization of
children. As the number of individuals charged with producing, possessing,
or distributing this illicit material has increased, courts and law enforcement
have more frequently faced difficult questions about how to best protect the
next generation of Americans without giving short shrift to the protection of
freedom of speech enshrined in the Constitution’s First Amendment. In
response, many courts have coupled a harsh prison term with an offer of
supervised release, on condition that a convict agrees to give up computer
and Internet access while outside of prison.
Though the many circuit courts that have addressed challenges to these
punishments have not relied on unconstitutional conditions theory in their
rulings, the doctrine is relevant in this situation. Unconstitutional
conditions theory posits that if the government is not obligated to provide a
benefit, viz. supervised release, the government may not offer that benefit
336. See supra notes 17, 30 and accompanying text.
337. See supra note 283 and accompanying text.
338. See supra notes 57, 281 and accompanying text.
339. See supra notes 28185 and accompanying text.
340. See supra note 272 and accompanying text.
on condition that the recipient must forfeit a constitutional right, viz.
freedom of speech, in order to accept the offer. While courts and
commentators have failed to agree on a unified doctrine through which to
apply the theory, this Note takes up the challenge and offers an
organizational framework to judge the constitutionality of a condition based
on its coerciveness, the government’s purpose, and the condition’s effect.
When this framework is applied to an offer of supervised release with a
condition that limits computer and Internet access, the condition passes as
constitutional. Viewing the coercion prong of this framework according to
contract principles, a condition passes the test where a convict knowingly
and voluntarily agrees to accept a term of supervised release with the
concomitant restriction on speech. However, because the government so
rarely compels acceptance of supervised release, the purpose prong of this
Note’s framework ensures the government is not offering the conditional
benefit to regulate speech indirectly, and that a condition that restricts
technology actually relates to the child pornography crime. Finally, a
condition satisfies the effect prong where the restriction protects minors and
harnesses Internet-filtering and computer-monitoring technology to
minimize infringement of a convict’s First Amendment rights. Where a
condition passes all three elements of this Note’s framework, it is a
A. The Scope and Limits of First Amendment Freedom of Speech ..................................................................................... 222 1 . A Convict 's Enjoyment of First Amendment Speech Rights Depends on His Level of Incarceration ................. 223 2. The Government's Power To Limit Enjoyment of Sexually Explicit Material Depends on the Type of Content .............................................................................. 225 3. Freedom of Speech and the State's Authority To Regulate Sexually Explicit Content Are Evolving in the Internet Age....................................................................... 227
B. The Theory of Unconstitutional Conditions............................... 230 1 . Unconstitutional Conditions “ Doctrine” Arose in Economic Cases and Developed to Encompass Speech and Individual Rights ........................................................ 231 2 . If Not All Fundamental Criminal Protections May Be Waived , When Does Offering Early Release from Prison Create an Unconstitutional Condition? . ................. 233 a. Waiver of Constitutional Rights in Criminal Cases ...... 233 b. Waiver of Constitutional Rights in Prisoner Cases ...... 235 3. Even the Supreme Court Cannot Decide When a Speech Restriction Is an Unconstitutional Condition? . ................. 236 a. Unconstitutional Conditions in Free Speech Cases ...... 236 b. Constitutional Conditions in Free Speech Cases .......... 238 4. Offering a New Framework for Unconstitutional Conditions Analysis: Applying Coercion-PurposeEffect to a Condition That Restricts Access to Technology........................................................................ 239 a. Existing Theories for Understanding Unconstitutional Conditions....................................... 240 b. A New Three-Prong Framework: Coercion-PurposeEffect ........................................................................... 241 c. Using This Note's New Three-Part Framework To Analyze a Supervised Release Condition That Limits Access To Technology ..................................... 243
II. APPLYING THE COERCION-PURPOSE-EFFECT FRAMEWORK : IS A SUPERVISED RELEASE RESTRICTION ON COMPUTER AND INTERNET ACCESS AN UNCONSTITUTIONAL CONDITION?. ............ 244 A. Prong One: When Is a Condition Coercive? . ........................... 245 1 . A Condition May Be Coercive If the Government Leaves a Convict No Choice but To Accept the Offer and Restriction ......................................................................... 245 2. However, a Condition May Not Be Coercive If a Convict Knowingly and Voluntarily Accepts the Bargain ............. 247 B. Prong Two: When Is the Government's Purpose Improper? ... 248 1. The Government May Have an Inappropriate Motive Where It Uses a Condition To Regulate Protected Speech Indirectly............................................................... 248 2. But, the Government's Intent May Be Valid Where It Offers a Condition To Protect the Public and Provides Exceptions To Allow Computer and Internet Use ............ 250
C. Prong Three: When Is a Condition's Effect Overly Restrictive? . ............................................................................ 252 1 . A Condition's Effect May Be Too Restrictive If It Broadly Limits Access to Protected Speech ..................... 253 2. Nevertheless, a Condition's Effect May Be Permissibly Restrictive If It Minimally Limits Speech While Enhancing Public Safety ................................................... 255
III. THE GOVERNMENT MAY OFFER SUPERVISED RELEASE, WITH A CONDITION THAT RESTRICTS TECHNOLOGY ACCESS, WITHOUT CREATING AN UNCONSTITUTIONAL CONDITION . .......................... 257 A. A Condition Fulfills the Coercion Prong, Viewed Through Contract Law, Where a Convict Knowingly and Voluntarily Accepts the Conditional Offer................................................. 258 B. A Condition Satisfies the Purpose Prong Where the Government Seeks To Boost Public Safety and Includes Exceptions To Allow Access to Technology............................ 260 C. A Condition Meets the Effect Prong Where It Protects Children While Using Technology To Maximize Free Speech ..................................................................................... 261
CONCLUSION ............................................................................................. 263 6 . Id. at 268 69 . 7. See id. at 270 (alterations in original) . 8. Opening Brief for Appellant Thielemann at 29 31, Thielemann , 575 F.3d 265 (No.
08- 2335 ). 9. Thielemann, 575 F.3d at 278. 10. See id.; United States v. Harding , 57 F. App 'x 506 , 508 ( 3d Cir . 2003 ); United States
v. Crandon, 173 F.3d 122 , 127 - 28 ( 3d Cir . 1999 ). 11 . See United States v. Voelker , 489 F.3d 139 , 144 ( 3d Cir . 2007 ); United States v .
Freeman , 316 F.3d 386 , 391 92 ( 3d Cir . 2003 ). 12 . See Recent Case , Criminal Law-Supervised Release-Third Circuit Approves
Decade-Long Internet Ban for Sex Offender-United States v . Thielemann , 575 F. 3d 265
(3d Cir . 2009 ), 123 HARV. L. REV. 776 , 779 ( 2010 ) ; see generally Krista L . Blaisdell, Note,
Restrictions for Internet Sex Offenders , 43 VAL. U. L. REV. 1155 ( 2009 ) (outlining circuit
split on the issue) . 13 . Amir Efrati , Making Punishments Fit the Most Offensive Crimes, WALL ST . J., Oct.
23, 2008 , at A14 (noting cases of child exploitation via computer have more than doubled in
five years , to 2211 federal cases in 2008 ); The Steady Stream of Child Porn Sentencings,
SENT'G L. & POL'Y (May 2 , 2009 , 12 :13 PM),
http://sentencing.typepad.com/sentencing_law_and_policy/ 2009 /05/the-steady -stream-of-
pornography) . 14 . See United States v. Stults , 575 F.3d 834 , 855 56 ( 8th Cir . 2009 ); United States v .
Perazza-Mercado , 553 F.3d 65 , 69 74 ( 1st Cir . 2009 ); United States v . Sullivan , 451 F.3d
884 , 895 96 ( D.C. Cir . 2006 ); United States v . Balon , 384 F.3d 38 , 43 46 ( 2d Cir . 2004 );
United States v . Granger , 117 F. App 'x 247 , 248 49 ( 4th Cir . 2004 ); United States v .
Rearden , 349 F.3d 608 , 620 22 ( 9th Cir . 2003 ); United States v . Taylor , 338 F.3d 1280 ,
1284 85 ( 11th Cir . 2003 ); United States v . Holm , 326 F.3d 872 , 877 79 ( 7th Cir . 2003 ); 23 . See STONE ET AL., supra note 21 , at 3 (comparing Justice Hugo Black's absolutist
upholding restrictions) . 24 . 416 U.S. 396 ( 1974 ). 25 . See id. at 412 13; see also Thornburgh v. Abbott , 490 U.S. 401 , 408 14 ( 1989 )
(reviewing prison speech regulations under a reasonableness standard) . 26. See Procunier , 416 U.S. at 413 14 . 27. See id. ; see also Thornburgh , 490 U.S. at 403 04 , 415; Turner v. Safley , 482 U.S.
78 , 91 94 ( 1987 ). 28 . See Karen J. Hartman , Prison Walls and Firewalls: H.B. 2376 Arizona Denies
Inmates Access to the Internet, 32 ARIZ . ST. L.J. 1423 , 1430 ( 2000 ) ; Titia A . Holtz, Note,
Internet , 67 BROOK. L. REV. 855 , 860 66 ( 2002 ) (scrutinizing regulations prohibiting inmate
Internet access) . 29 . See , e.g., Michael James, Learning Behind Bars, BALT . SUN, Feb. 12 , 2001 , at C1.
(Aug. 13 , 2010 , 4 :21 PM), http://blogs.wsj.com/law/2010/08/13/texas-prison-is-technology-
vortex-allen-stanford-says/ . 37. United States v. Reyes , 283 F.3d 446 , 461 ( 2d Cir . 2002 ) (quoting United States v .
Cardona , 903 F.2d 60 , 63 ( 1st Cir . 1990 )). 38 . United States v. Lifshitz , 369 F.3d 173 , 181 n. 4 ( 2d Cir . 2004 ) (citing Reyes, 283
F.3d at 461)) . 39 . See Reyes, 283 F. 3d at 455 (recounting the history, structure, and purpose of
supervised release); see also 18 U.S.C. §§ 3602 3603 ( 2006 ) (describing appointment and
visited Sept . 23 , 2010 ). 40 . See United States v. Reese , 71 F.3d 582 , 588 ( 6th Cir . 1995 ); see also 18 U.S.C. §
3583(d) (listing criteria for imposition of supervised release); Gozlon-Peretz v . United
States , 498 U.S. 395 , 407 08 ( 1991 ) (discussing the history of supervised release ). 41. See supra notes 2427, 3436 and accompanying text; cf. Reyes, 283 F.3d at 462
continuum of punishment) . 42 . Ginsberg v. New York, 390 U.S. 629 , 631 33 ( 1968 ). 43 . 413 U.S. 15 , 16 ( 1973 ) (re-examining precedent on “the intractable obscenity
problem” (quoting Interstate Circuit, Inc . v. City of Dallas, 390 U.S. 676 , 704 ( 1968 )
(Harlan , J., concurring and dissenting))) . 44 . Id. at 16 18 . 45. Id. at 36 . 46. Id. at 23 24 . 63. See Reno v . ACLU , 521 U.S. 844 , 868 ( 1997 ) (expounding on “the vast democratic
INTERNET AND CIVIC ENGAGEMENT 312 ( 2009 ), available at
Internet , 27 WM. MITCHELL L. REV. 1797 ( 2001 ) ; Claire Cain Miller, How Obama's Internet
Campaign Changed Politics , N.Y. TIMES BITS BLOG ( Nov . 7, 2008 , 7 :49 PM),
http://bits.blogs.nytimes.com/ 2008 /11/07/how-obamas -internet-campaign-changed-politics.
voting, online or otherwise . See Caron v. United States , 524 U.S. 308 , 316 ( 1998 ). 64 . See Reno, 521 U.S. at 870 ( using “chat rooms, any person with a phone line can
LAWRENCE LESSIG , CODE: VERSION 2 .0, at 236 ( 2006 ) (noting the Internet has eroded
barriers to publication). 65. LESSIG, supra note 64 , at 237. Though extolling the Internet's virtues , Lessig also
believes it can and must be regulated . See id. at 27 28 . 66. Id ., at 275 . 67. See id. at 237 41 . The recent controversy over publication by Wikileaks of
Baxter , Lawyers Emerge from Wikileaks Shadows , AM. L. DAILY ( July 26 , 2010 , 7 :58 PM),
http://amlawdaily.typepad.com/amlawdaily/2010/07/wikileaks.html. 68 . 5 RONALD D. ROTUNDA & JOHN E. NOWAK, TREATISE ON CONSTITUTIONAL LAW:
SUBSTANCE AND PROCEDURE § 20 .61( n ) (4th ed. 2007 ). 69 . 521 U.S. 844 ( 1997 ). 70 . See id. at 849 . 71. Pub . L. No. 104 - 104 , 110 Stat. 133 (codified as amended at 47 U.S.C. § 223 ( 1994 )). 87 . 542 U.S. 656 ( 2004 ). 88 . Id. at 660 61 . 89. See Ashcroft I , 535 U.S. at 585 86; supra notes 8086 and accompanying text. 90. See Ashcroft II , 542 U.S. at 660 61 . 91. See id. at 669 670; United States v . Am. Library Ass'n , 539 U.S. 194 ( 2003 )
(plurality opinion) . 92 . See Ashcroft II , 542 U.S. at 668 69 . 93. JACK GOLDSMITH & TIM WU, WHO CONTROLS THE INTERNET? ILLUSIONS OF A
BORDERLESS WORLD 83 ( 2006 ) (“[T]he problem for government's efforts to control
blocked, like artistic expression, sexual education, and news . ”) . 94 . La . Pac. Corp. v. Beazer Materials & Servs., Inc., 842 F. Supp . 1243 , 1248 49 &
n.12 (E.D. Cal . 1994 ) ; see also Lynn A. Baker, The Prices of Rights: Toward a Positive
Theory of Unconstitutional Conditions , 75 CORNELL L. REV. 1185 , 1186 ( 1990 ) (“Despite
Sullivan , Unconstitutional Conditions and the Distribution of Liberty , 26 SAN DIEGO L. REV.
327 , 327 30 ( 1989 ) (surveying the leading but flawed theories and proposing an alternative
framework) . 95 . Dolan v. City of Tigard , 512 U.S. 374 , 407 n. 12 ( 1994 ) (Stevens , J., dissenting) . 96 . See GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 1598 1608 (6th ed. 2009 );
Consent , 102 HARV. L. REV. 4 , 7 8 (1988); Kathleen M. Sullivan , Unconstitutional
Conditions , 102 HARV. L. REV. 1413 , 1421 22 ( 1989 ). 97 . See supra note 96 and accompanying text; cf. United States v . Loy , 237 F.3d 251 ,
261 ( 3d Cir . 2001 ) (noting importance of judicial review of conditions of supervised
release) . 98 . 87 U.S. ( 20 Wall.) 445 ( 1874 ). 99 . See id. at 450 51 . 100. Doyle v. Cont'l Ins. Co., 94 U.S. 535 , 543 ( 1876 ) (Bradley , J., dissenting). Justice
for a bad cause, is not sound .” Id. at 543 44 . 101 . 198 U.S. 45 ( 1905 ). 102 . See Frost & Frost Trucking Co. v. R.R. Comm 'n of Cal ., 271 U.S. 583 , 593 95
( 1926 ) (collecting cases rejecting state business regulations that required the “surrender of a
See generally 2 ROTUNDA & NOWAK , supra note 68, § 15 . 3 (discussing Lochner and
economic liberty jurisprudence) . 103 . 357 U.S. 513 ( 1958 ). 104 . Id. at 514 17 . 105. Id. at 517 . 106. See id. at 518 19 (“[T] he denial of a tax exemption for engaging in certain speech
speech.”). 107 . See , e.g., Rutan v . Republican Party of Ill., 497 U.S. 62 , 78 79 ( 1990 ) (firing based
on political patronage); Lefkowitz v . Cunningham , 431 U.S. 801 , 805 07 ( 1977 ) (retaining
position conditioned on waiving right against self-incrimination) . 108 . See Nollan v. Cal. Coastal Comm'n , 483 U.S. 825 , 837 ( 1987 ) (finding right-of-way
exaction non-germane to building permit) . 109 . See FCC v. League of Women Voters of Cal ., 468 U.S. 364 , 398 99 ( 1984 ) (limiting
editorializing by public grant recipients) . 110 . See , e.g., Thomas v . Review Bd., 450 U.S. 707 , 717 18 ( 1981 ) (striking requirement
benefits); Sherbert v . Verner , 374 U.S. 398 , 404 ( 1963 ) (rejecting welfare benefits
conditioned on working Saturday) . 111 . See , e.g., Cleveland Bd . of Educ. v. Loudermill, 470 U.S. 532 , 541 ( 1985 ); Perry v.
Sindermann , 408 U.S. 593 , 596 97 ( 1972 ). 112 . See South Dakota v. Dole , 483 U.S. 203 , 207 ( 1987 ) (conditioning highway funds on
raising state drinking age) . 113 . See FCC , 468 U.S. at 400; Regan v. Taxation with Representation of Wash ., 461
U.S. 540 , 545 ( 1983 ) (upholding spending restrictions on non-profit corporations ). 114 . See Rust v. Sullivan , 500 U.S. 173 , 192 ( 1991 ) (banning use of federal funds for
abortion-related activities); Harris v . McRae , 448 U.S. 297 , 312 , 315 ( 1980 ) (prohibiting use
of Medicaid funds for abortion) . 115 . See Wyman v. James , 400 U.S. 309 , 326 ( 1971 ). But see Schneckloth v .
Bustamonte , 412 U.S. 218 , 288 n. 12 ( 1973 ) (Marshall, J., dissenting) (interpreting consent
search and waiver of right to trial as an unconstitutional condition ). 116 . See Bordenkircher v. Hayes , 434 U.S. 357 , 364 65 ( 1978 ). See generally Jason
Mazzone , The Waiver Paradox, 97 NW. U. L. REV. 801 ( 2003 ) (questioning dichotomy
conditions) . 117 . 513 U.S. 196 ( 1995 ). 118 . Id. at 201; see also Peretz v. United States , 501 U.S. 923 , 936 ( 1991 ) (“The most
basic rights of criminal defendants are . . . subject to waiver.”). 119 . See United States v. Ruiz , 536 U.S. 622 , 628 29 ( 2002 ) (citing Boykin v . Alabama,
395 U.S. 238 , 243 ( 1969 )). 120 . See McKune v . Lile , 536 U.S. 24 , 42 ( 2002 ) (listing common choices facing
inmates); Mezzanatto, 513 U.S. at 209 10; see also Dada v. Mukasey , 128 S. Ct . 2307 , 2322
( 2008 ) (Scalia , J., dissenting) ( “Litigants are put to similar voluntary choices between the
of certain other remedies.”) . 121 . Brady v. United States , 397 U.S. 742 , 748 ( 1970 ) (internal citations omitted ). 122 . Moran v. Burbine , 475 U.S. 412 , 421 ( 1986 ) (discussing waiver in Miranda warning
context) . 123 . 390 U.S. 570 ( 1968 ). 124 . Id. at 571 72 . 125. Pub . L. No. 72 - 189 , 47 Stat. 326 (codified as amended at 18 U.S.C. § 1201 (a)
( 2006 )). 126 . Jackson , 390 U.S. at 571 . 127. Id. at 571 72 (quoting United States v . Jackson , 262 F. Supp . 716 , 718 (D. Conn .
1967 )). The Court later clarified that a guilty plea in the shadow of the death penalty is not
intelligently , and voluntarily. See Brady v. United States , 397 U.S. 742 , 747 48 ( 1970 )
(internal citations omitted); supra note 121 and accompanying text . 128 . Jackson , 390 U.S. at 582 . 129. United States v. Mezzanatto , 513 U.S. 196 , 204 ( 1995 ). 130 . See United States v. Gonzalez-Lopez , 548 U.S. 140 , 151 52 ( 2006 ) (citing Wheat v .
United States , 486 U.S. 153 , 159 60 ( 1988 )). 131 . See , e.g., Zedner v . United States , 547 U.S. 489 , 500 01 ( 2006 ) ; United States v .
Gambino , 59 F.3d 353 , 359 60 ( 2d Cir . 1995 ) (joining other circuits in so holding ). 132 . See McKune v . Lile , 536 U.S. 24 , 36 ( 2002 ) (citing O'Lone v . Estate of Shabazz,
482 U.S. 342 , 348 , 351 ( 1987 )); see also supra notes 2429 and accompanying text. 133 . See Samson v. California , 547 U.S. 843 , 847 ( 2006 ) ; United States v . Knights , 534
U.S. 112 , 119 ( 2001 ); Griffin v . Wisconsin , 483 U.S. 868 , 872 73 ( 1987 ) ; United States v .
Reyes , 283 F.3d 446 , 457 ( 2d Cir . 2002 ). 134 . See Samson, 547 U.S. at 849 , 853 (reminding the government that it need not ignore
the likelihood of recidivism to protect constitutional rights ); Knights, 534 U.S. at 118
(upholding waiver condition because of state interest in effective probation system ). 135. See Knights , 534 U.S. at 118; Reyes, 283 F.3d at 461. See generally 5 WAYNE R.
LAFAVE , SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 10.10(b) (4th ed.
2004 ) (explaining and criticizing the “act of grace” theory granting government absolute
power to set release conditions) . 136 . 523 U.S. 272 ( 1998 ). 137 . See Woodard, 523 U.S. at 279 , 28586; see also U.S. CONST. amend. V. (“[N]or
shall [a person] be compelled in any criminal case to be a witness against himself . ”) . 197 . See Sullivan, supra note 96 , at 1498 99 . 198. See EPSTEIN , supra note 181, at 6971. 199. See supra note 165 and accompanying text. 200. See supra note 190 and accompanying text. 201 . There is no standard condition, but a common version states that the convict “shall
United States v . Paul , 274 F.3d 155 , 160 ( 5th Cir . 2001 ) (alteration in original) (quoting the
district court's conditions); see also United States v . Holm , 326 F.3d 872 , 877 (7th Cir.
2003 ) (“[Holm] shall not possess or use a computer that is equipped with a modem, that
States v . Peterson , 248 F.3d 79 , 81 ( 2d Cir . 2001 ) (per curiam) (“[Peterson] shall not
possess, purchase, or use a computer or computer equipment . . . .”). 202 . Greenholtz v. Inmates of Neb. Penal and Corr. Complex , 442 U.S. 1 , 7 ( 1979 );
United States v . Woods , 547 F.3d 515 , 519 ( 5th Cir . 2008 ) (“It is axiomatic that the
(internal citations omitted); see Sullivan , supra note 96 , at 1422 26; supra note 34 and
accompanying text. 203. See Greenholtz , 442 U.S. at 9 11 (juxtaposing level and value of liberty in a variety
of early release contexts) . 204 . See Sullivan, supra note 96, at 142628; supra notes 41 , 187 88 and accompanying
text. 205. See supra notes 62 , 64 66 and accompanying text; Ashcroft v . ACLU ( Ashcroft II ),
542 U.S. 656 , 666 ( 2004 ) (describing potentially permissible restrictions on Internet speech ). 206 . See , e.g., United States v . Thielemann , 575 F.3d 265 , 268 ( 3d Cir . 2009 ), cert.
denied , 130 S. Ct . 1109 ( 2010 ); Paul, 274 F.3d at 158. 207. See , e.g., United States v . Freeman , 316 F.3d 386 , 387 ( 3d Cir . 2003 ); Paul, 274
F. 3d at 158; see also supra note 15 (noting men commit most child pornography crimes ). 208 . See Mike Scarcella, Prosecutors in Child Pornography Case To Seize Residence,
NAT'L L.J. ( July 7 , 2009 ), http://www.law.com/jsp/article.jsp?id=1202432025815; Eighth
(May 26 , 2010 , 12 :24 pm) http://sentencing.typepad.com/
sentencing_law_ and_policy/ 2010 /05/eighth-circuit -affirms-big-real-property-forfeiture-for-
child-porn-offense.html (discussing United States v . Hull , 606 F.3d 524 ( 8th Cir . 2010 )).
But see United States v . Paull , 551 F.3d 516 , 533 ( 6th Cir . 2009 ) (Merritt , J., dissenting)
denied , 130 S. Ct . 187 ( 2009 ) ; Efrati, supra note 13 (reporting on reevaluation of sentencing
of Child Porn May Be Too High, Judges Say, NAT'L L.J. ( Sept. 10 , 2009 ),
http://www.law.com/newswire/cache/1202433693658.html. 209. See , e.g., Thielemann , 575 F.3d at 269; United States v. Holm , 326 F.3d 872 , 874
(7th Cir . 2003 ); Paul, 274 F.3d at 158.
575 F. 3d at 278 (approving condition that permitted word processing on computer
unconnected to the Internet) . 214 . United States v. Voelker , 489 F.3d 139 , 148 & n. 8 ( 3d Cir . 2007 ) (describing
controls); see United States v . Silvious , 512 F.3d 364 , 371 ( 7th Cir . 2008 ) (“[A] total ban on
supervised release .”); United States v . Scott , 316 F.3d 733 , 736 37 ( 7th Cir . 2003 ) (rejecting
complete Internet ban); cf. Doe , 566 F. Supp . 2d at 879 (rejecting illusory choice between
consenting to condition and being prosecuted ). 215 . 244 F.3d 1199 ( 10th Cir . 2001 ). 216 . See id. at 1205 06 (reading release condition as absolute). 217. See id . at 1205; Doe, 566 F. Supp . 2d at 879 . 218. United States v. Holm , 326 F.3d 872 , 877 78 ( 7th Cir . 2003 ) ; see , e.g., United States
v. Heckman, 592 F.3d 400 , 402 , 408 & n. 10 ( 3d Cir . 2010 ); Scott, 316 F.3d at 736; United
States v . Peterson , 248 F.3d 79 , 83 84 ( 2d Cir . 2001 ) (per curiam) . 219 . See , e.g., Heckman, 592 F.3d at 405 09 (distinguishing Third Circuit precedent );
United States v . Walser , 275 F.3d 981 , 985 , 988 ( 10th Cir . 2001 ). 220. See supra notes 18788 and accompanying text; cf. Doe , 566 F. Supp . 2d at 879 . 221. United States v. Lifshitz , 369 F.3d 173 , 183 ( 2d Cir . 2004 ) (emphasizing the
multifaceted nature of a computer); see supra notes 18687 and accompanying text. 222. See supra notes 124 , 188 89 and accompanying text. 223 . 541 F.3d 915 ( 9th Cir . 2008 ), cert. denied, 129 S. Ct . 1600 ( 2009 ). 224 . See id. at 923 24; see also Heckman, 592 F. 3d at 407 n.9 (surveying acceptance of
lifetime bans in other circuits); United States v . Stolte , 357 F. App 'x 943 , 944 (9th Cir.
2009 ) (citing Daniels, 541 F.3d at 92224) . But see United States v . Voelker , 489 F.3d 139 ,
148 ( 3d Cir . 2007 ) (noting that as of 2007, no circuit had, in a precedential opinion,
approved a lifetime term of supervised release without computer and Internet access) . 225 . See , e.g., United States v . Cope , 527 F.3d 944 , 949 55 ( 9th Cir . 2008 ), cert. denied,
129 S. Ct . 321 ( 2008 ) ; United States v . Scott , 316 F.3d 733 , 734 36 ( 7th Cir . 2003 ); United
States v . Freeman , 316 F.3d 386 , 391 ( 3d Cir . 2003 ) (remanding case where reason for
condition not explained) . 226 . See , e.g., United States v . Tome, No. 09 - 16486 , 2010 U.S. App. LEXIS 16239, at * 4
(11th Cir. July 27 , 2010 ); United States v . Yuknavich , 419 F.3d 1302 , 1309 11 ( 11th Cir .
2005 ) (imposing condition after probation violation) . But see United States v . White , 244
F. 3d 1199 ( 10th Cir . 2001 ) (rejecting technology condition imposed after convict violated
prior condition barring alcohol consumption) . 227 . United States v. Brigham , 569 F.3d 220 , 234 ( 5th Cir . 2009 ), cert. denied, 130 S. Ct .
1013 ( 2009 ) ; see Scott, 316 F .3d at 73637; United States v. Paul , 274 F.3d 155 , 170 (5th
Cir . 2001 ). 228 . See Scott , 316 F.3d at 73637; supra notes 189 , 193 and accompanying text; see
also Budget Woes Have States Rethinking Prison Policy , WASH. POST, Dec. 20 , 2009 , at A3. 229. See Daniels, 541 F.3d at 92324; supra notes 16471 and accompanying text. 230 . See United States v. Miller , 594 F.3d 172 , 183 84 , 188 ( 3d Cir . 2010 ); United States
v. Voelker, 489 F.3d 139 , 144 ( 3d Cir . 2007 ); United States v . Holm , 326 F.3d 872 , 879 (7th
Cir . 2003 ). 231 . See Miller , 594 F.3d at 187 88 (explaining distinctions in Third Circuit cases based
Bender , 566 F.3d 748 , 751 ( 8th Cir . 2009 ) (noting Eighth Circuit allows expansive condition
pornography) . 232 . 248 F.3d 79 ( 2d Cir . 2001 ) (per curiam) . 233. See id. at 81 83 . 234. See id. at 82 83; see also United States v. T.M., 330 F.3d 1235 , 1240 41 ( 9th Cir .
2003 ) (vacating condition imposed in drug case related to sex crimes committed twenty and
forty years prior); United States v . Scott , 270 F.3d 632 , 636 ( 8th Cir . 2001 ) (rejecting
condition for bank robbery crime due to convicted rape fifteen years earlier ). 235 . See , e.g., United States v . Perazza-Mercado , 553 F.3d 65 , 76 77 ( 1st Cir . 2009 );
Voelker , 489 F.3d at 15053; United States v. Antelope , 395 F.3d 1128 , 1141 42 ( 9th Cir .
2005 ) ; United States v . Loy , 237 F.3d 251 , 263 , 266 67 ( 3d Cir . 2001 ); see also United
States v . Weatherton , 567 F.3d 149 , 154 & n. 4 ( 5th Cir .), cert. denied, 130 S. Ct . 300 ( 2009 )
(clarifying the approach of other circuits); United States v . Wilkinson , 282 F. App 'x 750,
754 ( 11th Cir . 2008 ) (highlighting circuit split on the issue ). 236 . See , e.g., United States v . Silvious , 512 F.3d 364 , 371 ( 7th Cir . 2008 ) (castigating
mail); United States v . White , 244 F.3d 1199 ( 10th Cir . 2001 ) (rejecting technology
condition imposed when convict violated parole by drinking alcohol ). 237 . See , e.g., United States v . Russell , 600 F.3d 631 , 637 38 ( D.C. Cir . 2010 ) (stressing
respectively); United States v . Holm 326 F.3d 872 , 877 78 ( 7th Cir . 2003 ). 238. See Voelker, 489 F.3d at 148; supra notes 214 , 218 19 and accompanying text
(describing reasons to reject lifetime conditions) . But see infra notes 24749 , 251 53 and
accompanying text (noting approval of lifetime conditions ). 239 . See , e.g., Russell , 600 F. 3d at 638 (emphasizing rarity of approval of unconditional
ban); United States v . Sullivan , 451 F.3d 884 , 895 96 ( D.C. Cir . 2006 ) (noting circuit split
on need for exceptions) . 240 . See United States v. Pruden , 398 F.3d 241 , 250 51 ( 3d Cir . 2005 ) (noting
States v . Scott , 316 F.3d 733 , 736 ( 7th Cir . 2003 ) (highlighting danger that Probation Office
exception facilitates censorship) . 241 . See , e.g., United States v . Crandon , 173 F.3d 122 , 127 ( 3d Cir . 1999 ). 242 . See United States v. Knights , 534 U.S. 112 , 118 n. 4 ( 2001 ) (arguing valid condition
furthers interest in probation) . 243. See supra notes 193, 23037 and accompanying text. 244. See supra notes 192 , 230 37 and accompanying text. 245. See , e.g., United States v . Weatherton , 567 F.3d 149 , 155 (5th Cir.), cert. denied, 130
S. Ct . 300 ( 2009 ) ; United States v . Paul , 274 F.3d 155 , 170 72 ( 5th Cir . 2001 ); 173 F.3d at
122 , 127 28 . See generally 18 U.S.C. § 3553 (a) ( 2006 ) (listing public safety among valid
reasons for supervised release) . 246. See supra notes 4855 and accompanying text . 259 . 244 F.3d 1199 ( 10th Cir . 2001 ); see supra notes 21517. 260. See White , 244 F.3d at 1206; see also United States v . Richards, No. 09 - 10324 , 2010
U.S. App . LEXIS 13133, at *67 (9th Cir . June 25, 2010 ) (striking as invalid under the First
Amendment a condition that limited ability to criticize a public official). 261. See United States v . Bender , 566 F.3d 748 , 753 ( 8th Cir . 2009 ) (noting importance
of access to learning); United States v . Scott , 316 F.3d 733 , 737 ( 7th Cir . 2003 ); United
States v . Freeman , 316 F.3d 386 , 392 ( 3d Cir . 2003 ) ; James, supra note 29 (noting online
education for prisoners) . 262 . United States v. Riley , 576 F.3d 1046 , 1048 49 ( 9th Cir . 2009 ) (invalidating
condition that convict “shall not access via computer any material that relates to minors” ). 263 . See , e.g., United States v . Russell , 600 F.3d 631 , 636 , 638 (D.C. Cir . 2010 )
United States v . Perazza-Mercado , 553 F.3d 65 , 73 ( 1st Cir . 2009 ); Freeman, 316 F.3d at
392; White, 244 F.3d at 1206; supra notes 57 62 and accompanying text (noting growth of
Internet use) . 264. See White , 244 F.3d at 1206; see also Quinn Bowman, Economy, Online Trends
Threaten Newspaper Industry , PBS NEWSHOUR EXTRA , ( May 8 , 2009 ),
http://www.pbs.org/newshour/extra/features/arts/jan-june09/newspapers_ 05 - 08 .html. For an
and Offline , GOOGLE PUB. POL'Y BLOG (Mar . 9, 2010 , 9 :00 AM)
http://googlepublicpolicy.blogspot.com/ 2010 /03/newspaper-economics -online-and-
offline.html. 273 . 274 F.3d 155 ( 5th Cir . 2001 ). 274. See supra notes 21517, 25960 and accompanying text. 275. See Paul , 274 F.3d at 16770; see also United States v. Brigham , 569 F.3d 220 , 234
(5th Cir.), cert . denied, 130 S. Ct . 1013 ( 2009 ) (following Paul) . 276 . See Paul, 274 F.3d at 170; see also Brigham, 569 F.3d at 234. 277. See United States v. Rearden , 349 F.3d 608 , 620 21 ( 9th Cir . 2003 ); United States v .
Zinn , 321 F.3d 1084 , 1092 93 ( 11th Cir . 2003 ) ; supra note 231 and accompanying text. 278. See United States v . Perazza-Mercado , 553 F.3d 65 , 71 72 ( 1st Cir . 2009 )
(approving condition because of ban's limited effect); supra note 252 and accompanying text
(addressing Probation Office exception) . 279 . See United States v. Lifshitz , 369 F.3d 173 , 192 ( 2d Cir . 2004 ); United States v .
White , 244 F.3d 1199 , 1206 ( 10th Cir . 2001 ) (enumerating content control using a whitelist
or blacklist) . See generally GOLDSMITH & WU, supra note 93 , at 58 63 , 65 104 ( 2006 )
control of the Internet and its content); LESSIG , supra note 64, at 54 59 , 253 59 (articulating
OF THE INTERNET AND HOW TO STOP IT 10916 ( 2008 ) (detailing methods for Internet
surveillance and monitoring) . 280 . See , e.g., United States v . Miller , 594 F.3d 172 , 178 ( 3d Cir . 2010 ); United States v .
Heckman , 592 F.3d 400 , 409 & n. 12 ( 3d Cir . 2010 ). 281 . See United States v. Holm , 326 F.3d 872 , 878 ( 7th Cir . 2003 ); United States v .
Sofsky , 287 F.3d 122 , 126 ( 2d Cir . 2002 ) ; see also United States v . Johnson , 446 F.3d 272 ,
282 83 ( 2d Cir . 2006 ) (suggesting special considerations for restrictions on a tech savvy
notes 57 , 166 71 and accompanying text (recognizing Internet use and optional content
filters at public libraries) . 282. See Miller, 594 F.3d at 18789; Lifshitz, 369 F.3d at 19192 & nn.910; United
States v . Taylor , 338 F.3d 1280 , 1285 ( 11th Cir . 2003 ); Sofsky, 287 F.3d at 126. See
Ctr. , Rockville , Md.), Winter 2005 , at 1, available at
and probation officers to manage computer use by sex offenders). 283. See United States v . Russell , 600 F.3d 631 , 638 (D.C. Cir . 2010 ); United States v .
Perazza-Mercado , 553 F.3d 65 , 73 ( 1st Cir . 2009 ). 284 . See Lifshitz, 369 F.3d at 179; Holm, 326 F.3d at 878; White, 244 F.3d at 1206 . See
The Second Circuit's Pragmatic Approach to Supervised Release for Sex Offenders , 49 WM.
& MARY L. REV . 681 ( 2007 ) (favoring filtering); Anton L . Janik , Jr., Note, Combating the
Search Requirements to Child Pornographers Using Computers, 79 DENV. U. L. REV. 379
( 2002 ) (praising consent to search); Jane Adele Regina , Comment, Access Denied: Imposing
of Probation, 4 SETON HALL CIRCUIT REV . 187 ( 2007 ) (supporting monitoring) . 285 . Ashcroft v. ACLU (Ashcroft II) , 542 U.S. 656 , 674 ( 2004 ) (Stevens , J., concurring) . 286. See supra notes 4855, 200 and accompanying text. 287. See Lifshitz, 369 F.3d at 192; supra notes 16671 and accompanying text.