A California juvenile court recently imposed probation restrictions on a youth that prohibited him from posting, displaying, or transmitting any gang-related symbols.
An appeals court held that this restriction was overbroad and not reasonably related to the past gang related activity which had brought the juvenile before the court. The court reasoned that this condition unconstitutionally targeted "all forms of interpersonal communication." (The courts concern that the juvenile could "violate the condition . . . . [by] discussing his past gang conduct to develop strategies to avoid future gang involvement" seems a bit 'quaint' to me.)
What is interesting to me is that rather than strike the condition, the appeals court modified it to prohibit transmitting gang-related information or symbols that are posted, displayed, or transmitted on or through his cell phone.
Generally, probation conditions that restrict constitutional rights are permissible if necessary to serve the dual purpose of rehabilitation and public safety. Probation conditions that restrict constitutional rights, however, are subject to a tighter review, and should be narrowly tailored to the specific must be carefully tailored and reasonably related to the compelling state interest in reforming and rehabilitating the defendant. When dealing with juveniles, the court has a bit more leeway. For example, in a case I argued before the Ohio Supreme Court back in 2006, we dealt with the ability of a juvenile court to require a juvenile sex offender to submit to polygraph testing, even when such testing might violate Fifth amendment rights. Faced with these concerns, a divided court held that "evidence must support the use of a polygraph for a particular juvenile before it is a reasonable community-control condition."
In this case, the focus on the use of cell phones raises additional issues. In enforcing this condition, the probation officers will likely be permitted to inspect the juveniles cell phone. I recently posted on a related issue here. The concern with such a condition on this juvenile is the ability of the condition to chill speech protected by the First Amendment that is unrelated to the juveniles past criminal conduct. Information on smart cell phones include personal matters that an individual, even one on probation, has a right to keep secret, and about which an individual has a reasonable expectation of privacy. For example, an examination of the contents of a person's e-mails, text messages, documents, and photographs could provide a probation officer with potentially unlimited information about the probationer, including legal, personal, medical, or financial information or political or religious views.
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