Olivia Covington for www.theindianalwyer.com
After being convicted of incest with his teenage niece, a Tippecanoe County man’s sentence contained several probation conditions, including a prohibition on accessing websites “frequented by children†and a prohibition on internet use without prior approval. Those conditions are the subject of an appeal now under review by the Indiana Supreme Court, which will decide whether the conditions, as applied, are unconstitutional.
During oral arguments Thursday in Kristopher Weida v. State of Indiana, 79S02-1711-CR-00687, Brian Karle, counsel for Weida, argued against the constitutionality of the probation conditions, telling the justices the conditions can be viewed as the equivalent of a complete internet ban. That’s because there’s no guarantee Weida’s probation officer would approve any requests for internet use, and because there are no parameters defining what a website “frequented by children†is.
Weida made similar arguments before the Indiana Court of Appeals, but a majority of the appellate panel upheld the conditions in August. Judge John Baker, however, dissented as to the requirement for Weida to get permission before using the web, finding that condition was “unduly intrusive and unnecessarily restrictive.â€
Karle agreed, noting the internet can be used for finding jobs, connecting with family, staying informed and more. He likened his client’s probation conditions to a ban 30 years ago on using a television or telephone or reading the newspaper.
But Monika Talbot, counsel for the state, said the conditions imposed on Weida do not constitute any sort of Internet ban at all. Rather, he is free to go to his probation officer at any time and ask for permission, and then to use the internet once that permission is granted.
Chief Justice Loretta Rush pushed back on that point, noting probation officers carry heavy caseloads and likely would not be able to respond to Weida’s requests for permission as quickly as he would like. Talbot, however, said Weida could arrange a meeting with his probation officer to develop guidelines regarding which sites he can access on his own and which sites he must seek permission to use.
The U.S. Supreme Court case Packingham v. North Carolina, 582 U.S. __ (2017), was a central part of Thursday’s arguments, with Karle arguing the Packingham decision — which struck down a North Carolina law banning sex offenders from accessing websites frequented by minors — proved Weida’s probation conditions were a violation of his First Amendment rights. But Talbot said Packingham spoke to offenders who, unlike Weida, had already completed their sentences.
The definition of a website frequented by children also seemed to be a sticking point for the justices, particularly justices Mark Massa and Geoffrey Slaughter, who wanted to know whether websites for organizations such as the Wall Street Journal and ESPN would fall into that category. Talbot said no, arguing the restriction applies to websites children use to communicate with each other.
But Karle disagreed, telling the justices even the Wall Street Journal’s website might be visited by older teenagers. Thus, even though it might seem unreasonable for the Wall Street Journal to be covered by the probation condition, Karle said the plain language of the condition would prohibit Weida from accessing that or similar websites.
The justices also engaged in a discussion of whether the conditions should be more narrowly tailored. On that point, Karle argued the conditions imposed on Weida were overbroad, considering websites such as the Wall Street Journal or ESPN were not related to his crime or rehabilitation, or the state’s interest in the case.
While Talbot conceded there would be no harm in the court setting out guidelines for narrowly tailoring probation conditions, she also said in this case, the conditions are not overbroad. She pointed specifically to the fact that prior to committing his offense, Weida logged on to an incest website with his niece, thus using the internet to “groom†her to become his victim.
Oral arguments in the case can be viewed here.
