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Man loses challenge to Internet access restrictions

July 9, 2013

A convicted sex offender’s probation condition restricting his access to certain websites and programs that are frequented by children does not violate the man’s First Amendment rights, the Indiana Court of Appeals ruled Tuesday.

Wayne Patton was convicted of Class D felony child seduction for inappropriately touching his teenage daughter’s breasts. He was required to register as a sex offender for 10 years. As part of his probation, he was ordered to not access websites, chat rooms or instant messaging programs frequented by children. He signed the form advising him of this condition at sentencing and did not object.

But in Wayne L. Patton v. State of Indiana, 17A05-1210-CR-538, Patton argued that this probation condition is vague and overbroad. He relied on Doe v. Marion County Prosecutor, 705 F.3d 694, 703 (7th Cir. 2013), to support his contention that his First Amendment rights are violated. Although the 7th Circuit Court of Appeals found I.C. 35-41-4-12 was not narrowly tailored and struck down enforcement of that portion of the law, it recognized that a trial court might constitutionally limit a defendant’s full access to the Internet as a term of supervised release if such access posed too high a risk of recidivism, the Court of Appeals pointed out. In addition, Patton is in a different position than the class of sex offenders in Doe.

“Because the condition of probation in this case is specifically tailored to only those internet activities that are ‘frequented by children,’ Patton is provided with adequate notice that he would be in violation of his probation by accessing websites that are designed and known to be used by children for communication,” Judge John Baker wrote.

“Also, in light of the vast nature of the internet, it would be virtually impossible for the legislature to list each and every website, chat room, or instant messaging program that permits communication by and among children. In short, because the language of the probation condition afforded Patton a predictable standard and notice with regard to his internet usage during his probationary period, his constitutional claims fail, and we decline to set aside the condition of probation that relates to his internet usage.”

 

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