The New Jersey Supreme Court is considering whether parole rules totally prohibiting internet access for sex offenders on lifetime parole are constitutional.
A lawyer representing a convicted sex offender asked the court on Nov. 7 to strike down the state parole board's total internet ban for his client, identified only as J.I., arguing that it violates the offender's free speech rights under the U.S. and state constitutions.
J.I.'s attorney, Michael Woyce, said the parole board has banned J.I. from owning or using any device capable of accessing the internet.
"He's banned from our century," said Woyce, of Ringwood's Murphy & Woyce.
In October 2003, J.I. was convicted of two counts of second-degree sexual assault and two counts of second-degree endangering the welfare of a child for molesting his two daughters, who at the time were 6 and 14 years old. A judge sentenced him to seven years in prison, required him to register as a sex offender and put him on community supervision for life.
Woyce told the court that given today's near-total reliance on internet technology, ranging from phones to cars, the sentence makes it almost impossible for J.I. to live his life.
Justice Anne Patterson noted that parole officials, in deciding to impose the ban, had accused J.I. of attempting view child pornography sites on the internet.
Woyce denied that he was trying to do that, but admitted that J.I. had been looking for "barely legal" pornography, meaning that he was attempting to view sites that contained adults who looked like juveniles engaged in sexual activity.
Patterson asked how J.I.'s internet activity could be monitored if a total ban was removed.
Parole officers, Woyce said, would be allowed to regularly monitor J.I.'s internet use.
Chief Justice Stuart Rabner asked what should happen if there are repeated violations.
"He can be arrested and jailed," Woyce said.
Justice Barry Albin asked if software could be installed that would block J.I. from accessing pornographic websites. Woyce replied, however, that also could infringe on J.I.s free speech rights.
The Office of the Public Defender participated as amicus. Assistant Deputy Public Defender Fletcher Duddy agreed that placing a total ban on a person from owning any device that can connect to the internet goes too far.
However, he said the court did not have to consider whether the ban rises to the level of a constitutional violation.
Instead, Duddy said the court could merely review the ban as an agency regulation and find that it is arbitrary, capricious and unreasonable.
The public defender's office, Duddy said, would not object to having parole officers track a sex offender's internet viewing habits. He added that parole officers could also block offenders from viewing certain sites if viewing those sites would violate the terms of the offender's parole.
The American Civil Liberties Union of New Jersey also participated as amicus. Its attorney, Rutgers Law School Dean Ronald Chen, also argued the total ban on any internet-capable device went too far.
"It is a First Amendment violation," Chen told the court.
Deputy Attorney General Lisa Puglisi asked the court to uphold the restrictions.
J.I., she said, was originally prohibited by parole officials from accessing social networking sites. However, the complete ban on internet-capable devices was imposed only after it was determined that he had violated the conditions of his parole.
Puglisi said J.I. can apply for prior approval if, for instance, he wants to be able to use the internet to access job-search sites. "There are checks and balances," she said.
Later in the hearing, Justice Walter Timpone also asked about blocking software. He asked whether blocking software could be installed on any device J.I. owned.
Puglisi said the state does not have special software for law enforcement use that is designed for sex offenders. Rather, she said, the only software available is that normally used by parents to restrict their children from accessing certain sites.
Albin asked how long the total ban is expected to last.
"There is no end date," Puglisi said. But she added that J.I., as well as other sex offenders, can appeal their bans and ask for partial relief.