Sex offender conditions violated First Amendment

Requiring a defendant to notify employers and family members of his status as a sex offender and prohibiting him from working with or otherwise contacting minors were appropriate, but conditions barring him from accessing material depicting sexually explicit conduct and possessing or using internet connected devices were vacated as unduly restrictive.

Background

In 2011, Cody Wroblewski was convicted in South Carolina of criminal sexual conduct in the third degree based on contact with a 5-year-old child. The conviction triggered a duty under federal law to register as a sex offender. Wroblewski complied with the initial registration requirements but was convicted in 2012 for failing to update his registration status. In 2014 he again failed to update his registration, and a warrant was issued for his arrest.

In August 2017, Wroblewski was found living in West Virginia. Because he had not updated his registration after moving to West Virginia, he was charged with, and subsequently pleaded guilty to, failing to register.

The presentence report recommended the imposition of several conditions of supervised release included in the local court rules for the Southern District of West Virginia that would bar Wroblewski from accessing material depicting sexually explicit conduct and possessing or using computers or other devices that can be connected to the internet, require him to notify employers and family members of his status as a sex offender and prohibit him from working with or otherwise contacting minors.

Following a hearing at which Wroblewski objected to the inclusion of those conditions, the district court issued a written judgment that imposed all of them. This appeal followed.

Analysis

The explicit materials condition does not simply bar access to obscene material or child pornography, but instead bars Wroblewski from all visual depictions of sex acts, whether obscene or not. Such depictions are extremely common in art, television and movies. Given that the condition also bars Wroblewski from entering any location where such materials could be viewed, the explicit material condition by its terms prevents Wroblewski from entering a movie theater, bookstore or library, and arguably prevents Wroblewski from going to a house where HBO or Showtime are available.

The district court’s only explanation for imposing this condition was that it is a standard condition for sex offenders and was necessary and appropriate under the circumstances. This is plainly insufficient. While we do not foreclose the possibility that such a broad restriction on the exercise of First Amendment rights could be justified in a particular case, there is simply nothing in the record before us to demonstrate why it is warranted in this case. Because we are unable to determine the district court’s basis for imposing the explicit material condition, we cannot say that it was properly imposed.

The above analysis is equally applicable to the district court’s imposition of the connected device condition. Given the centrality of the internet to modern life, the connected device condition operates as an extreme restriction on Wroblewski’s exercise of his First Amendment rights. The district court provided no explanation for the imposition of this condition, and there is no evidence in the record to suggest that internet access played any role in Wroblewski’s offense. The court failed to explain how or why the condition serves the relevant statutory sentencing factors, or why a less-extreme restriction, such as requiring computer-monitoring software, would not be effective. As such, we have no choice but to vacate the imposition of this condition.

With respect to the notification condition, however, Wroblewski concedes that there is some basis in his background to support it given his past failures to comply with registration requirements. Given this history, we cannot say that the district court abused its discretion by concluding that the condition imposes no greater restriction on his liberty than necessary.

The association with minors condition is likewise reasonably related to Wroblewski’s history and to the need to protect the public, particularly in light of his history of evading registration requirements.

Affirmed in part, vacated in part and remanded.

United States v. Wroblewski, Case No. 18-4370, July 12, 2019. 4th Cir. (Per curiam), Appeal from SDWV at Charleston (Berger). Jonathan D. Byrne for Appellant; Stefan Jack Oliver Hasselblad for Appellee. VLW 019-2-200. 13 pp.