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Court of Appeal:
Release Condition Banning All Social Media Is Constitutional
Opinion Says Broad Constraint, Which Encompasses Even News Websites With Commenting Features, Is Not Impermissibly Overbroad, Vague as Applied to Defendant Who Threatened Police on Facebook
By Kimber Cooley, associate editor
The Third District Court of Appeal held yesterday that an order prohibiting a man who was convicted of threatening a police officer on social media, as a condition of his supervised release from prison, from using or accessing any website that allows users to publicly share words or images on the platform is not unconstitutionally vague or overbroad.
Challenging the condition was Brandon Nixon, who was convicted of making criminal threats relating to a 2019 Facebook post which included a photograph of three Elk Grove Police Department officers, with crosshairs superimposed over two of the faces. The image was accompanied by the words “I hope both of you scum bags are killed in the line of duty and your family members are BRUTALLY murdered.”
One of the officers, Patrick Scott, had pulled Nixon over and searched his vehicle six months before the post was made on the social media platform. Nixon had made a complaint based on the encounter and had told a different member of the force that he would “whoop” Scott if he saw him again.
Scott testified at trial that the post caused him to fear for his life. In 2021, a jury convicted the defendant of the charge, and he was sentenced to two years in prison.
Nixon was released shortly after his sentencing on post-release community supervision subject to various terms and conditions, including that he “shall not knowingly possess, create, use or own social media accounts and electronic devices other than a telephone.”
After the defendant objected to the term as unconstitutional, Sacramento Superior Court Judge Satnam S. Rattu removed the electronic device prohibition and modified the social media provision to provide:
“Defendant shall not use, create, or access social media website accounts. A social media website is defined as ‘any internet website that allows users to post words or images which are accessible to the public, or to other users of the website.’ ”
In yesterday’s opinion authored by Acting Presiding Justice Louis Mauro, and joined in by Justices Elana Duarte and Peter A. Krause, the court upheld the modified condition.
Vagueness Considerations
On appeal, Nixon argued that the definition of “social media accounts” is too vague to withstand First Amendment scrutiny. He contended that the description does not “clarify whether this includes websites that only provide a commenting function as secondary to the dissemination of information,” such as a news website that allows users to post comments, or refers only to networking platforms like Facebook.
Mauro noted that a restriction is unconstitutionally vague if it is not sufficiently precise as to give the probationer notice of what actions are mandated or prohibited.
Applying that principle, he opined that “the condition clearly notified defendant that he could not use or access any website that allows users of the website to post words or images to be viewed by other users or the general public,” and reasoned that a news website allowing public comment “clearly falls within the definition.”
Nixon suggested that the challenged condition would be “clearer” if it restricted the use of “website[s] that serve[] the primary purpose of social networking, such as Facebook, Instagram, LinkedIn, etcetera.” Rejecting that assertion, Mauro wrote:
“Although defendant’s preferred definition is narrower, and arguably more in line with common usage of the term ‘social media,’ that does not make the broader definition set forth in the challenged condition unconstitutionally vague.”
Overbreadth Analysis
As to overbreadth, Nixon asserted that the prohibition barring him from all media websites that enable public comments impinges on his First Amendment rights.
Mauro acknowledged that the U.S. Supreme Court has found that social media platforms are important public forums for First Amendment purposes, but opined:
“However, the fact that the social media prohibition in this case impinges on defendant’s constitutional rights does not make it ‘per se overbroad.’ ”
The jurist cited the 2020 Third District decision in People v. Prowell, which held that a defendant convicted of harassing an ex-girlfriend through social media messaging platforms may be restricted from using such websites as a condition of probation. In Prowell, the court concluded:
“A complete prohibition on a probationer’s access to social networking Web sites during the term of probation might in some circumstances be a close fit between the legitimate purpose of the restriction—i.e., the reformation and rehabilitation of that probationer—and the burden that such a condition would impose on that probationer for the duration of the probationary term.”
Nixon contended that his release condition goes beyond the one at issue in Prowell by also including news websites. Mauro acknowledged that the Prowell condition was “arguably narrower,” but declared that this fact “does not make the prohibition challenged in this case overbroad.”
He remarked:
“Here, where defendant used social media to make death threats, the trial court could have reasonably concluded that any website that allows public comments could be similarly used by defendant. Preventing such use for the limited period of defendant’s postrelease supervision undeniably impinges on defendant’s constitutional rights, but no more so than is reasonably necessary to protect the state’s compelling interest in reforming defendant’s conduct.”
The case is People v. Nixon, C101167
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