Fairfax probation officers may not have unbridled discretion to decide what Internet access gets allowed and not

Fairfax probation conditions — as with the rest of Virginia – – may not ban internet access other than what is allowed by one’s probation agent. As a Fairfax criminal lawyer, I understand sentencing judges’ temptation to rely no the seeming expertise and regular contact with criminal defendants that is represented by the work of probation officers. However, the First Amendment right to free expression prohibits Virginia trial judges from imposing such a general ban, and instead generally requires narrow tailoring, rather than overbreadth in limiting web access to those put on probation in Virginia, and, by logical extension, those placed on supervision by the pretrial release office. Fazili v. Commonwealth of Virginia, 71 Va. App. 239 (2009). Fairfax sentencing proceedings may move quickly while Circuit Court judges often handle many sentencings in one day. However, Fazili does not enable the court to transfer to probation officers the task of judges to engage in such narrow tailoring.

If Fairfax probation agents are not permitted such unbridled discretion, what does that spell for barring internet access for pretrial release

Probation applies to people who are already convicted. Seeing that Virginia criminal defendants on pretrial release have not even been convicted — and are presumed innocent unless and until proven guilty beyond a reasonable doubt — Fazili provides pretrial releasees with no less protection than those on probation as part of their sentence. Fazili reverses a judicial Fairfax probation condition that provides that the defendant “’have no use of any device that can access internet unless approved by his Probation Officer.’” Fazili. Fazili finds this internet limitation to be content neutral, and therefore to involve intermediate scrutiny analysis to this First Amendment challenge, citing Packingham v. North Carolina, 137 S. Ct. 1730. “‘In order to survive intermediate scrutiny, [the state action] must be “narrowly tailored to serve a significant governmental interest.”’” Fazili (citations omitted).

What type of narrow tailoring might be involved as an alternative to an outright ban on internet access by people convicted of child pornography and other felony online offenses?

The foregoing narrow tailoring can include limiting the defendant to using devices that get monitored and even filtered through arrangement with the defendant’s Fairfax probation agent or other supervising agent, and to install filters against sexual material access. Of course, such filters have their serious flaws, as I have witnessed some pages of my law firm website blocked from being accessed through such filters, when particular legitimate pages (all are legitimate) on my website include legitimate legal discussions that include words that often are instead used for drawing sexual interest.

What if my sentencing or pretrial setting judge bars my access to the Internet?

Your livelihood and more can be at stake by being banned from Internet use. The sooner you have a qualified Virginia criminal defense lawyer to protect your interest in unfettered access to the Internet, the better. Fairfax criminal lawyer Jonathan Katz for years has defended people charged with alleged sex and child pornography crimes, often working with a forensic computer expert and forensic psychologist. Such defense is not for the faint of heart, and calls for relentless defense at every turn. Call 703-383-1100 for your free in person initial confidential consultation with Jon Katz about your court-pending case.