CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that completely restricting a person’s access to the internet as a condition of their parole from prison is a violation of the First Amendment.
The West Virginia Parole Board revoked Bobby Ross’s parole based, in part, on him violating a condition of parole prohibiting him from possessing or having contact with a computer or other device with internet access, according to the March 12 opinion.
“We are asked whether this condition of parole is constitutional under the First Amendment,” wrote Justice Menis Ketchum.
In 2017, the United States Supreme Court held in Packingham v. North Carolina that a state statute barring registered sex offenders from accessing social media networking websites was an overbroad restriction of the right to free speech in violation of the First Amendment.
“Like the statute in Packingham, Mr. Ross’s condition of parole ‘bars access to…sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge,’” the decision states.
Unlike the statute in Packingham, Ross’s condition of parole extends beyond social media and forbids him from visiting any website, receiving an email from an employer or medical professional, paying a bill online, using the internet to check the weather or using a smartphone.
“Because Mr. Ross’s condition of parole is broader than the statute struck down in Packingham, we find that it is an overbroad restriction of free speech in violation of the First Amendment,” Ketchum wrote.
Ross sexually assaulted an adult female in 1987 in her apartment and stole money from her purse. He was convicted and sentenced to prison for first-degree sexual assault, burglary and attempted aggravated robbery and remained in jail until May 2014.
Ross’s release on parole was subject to numerous conditions and, because he was registered as a sex offender, he was prohibited from possessing or having contact with any computer, electronic device, communication device or any device which is enabled with internet access.
Ross moved in with his girlfriend, M.W., who owned a computer and had internet access, but these were password protected and Ross did not know the password. There is no evidence that Ross ever used M.W.’s computer or logged on to the internet during his parole.
In December 2014, Ross’s parole officer learned that M.W. had a computer and Ross was arrested and returned to custody for violating the conditions of his parole, even though no forensic analysis of the computer was done to determine whether Ross had used the computer or had otherwise logged on to the internet during his parole.
The parole board reinstated Ross’s prison sentence, which he challenged. The circuit court vacated the board’s decision and reinstated Ross’s release on parole. The state then appealed the circuit court’s order to the Supreme Court.
Ross has remained in jail for more than three years since the revocation of his parole.
“The circuit court did not err by finding that the Board’s decision to revoke Mr. Ross’s parole was contrary to West Virginia parole laws,” Ketchum wrote. “We affirm the circuit court.”
Ketchum said the board’s decision to revoke Ross’s parole was unconstitutional.
“It was also without support from the evidence in the record and contrary to West Virginia’s parole laws,” he wrote. “Therefore, we affirm the circuit court’s order vacating the board’s decision and reinstating his release on parole.”
W.Va. Supreme Court of Appeals case number: 16-1156