Background
Samuel Marvin Kuykendall was convicted in 2010 of aggravated sexual battery of a 10-year-old girl and received a 20-year sentence, with 5 years and 1 month suspended on conditions that included good behavior and compliance with probation requirements. Special instructions applicable to sex offenders restricted social networking and required him to obtain prior approval before using internet services, install monitoring software, and designate his probation officer as an accountability partner.
After his release, Kuykendall repeatedly violated probation conditions. Among other conduct, he used Facebook and other internet services without permission or monitoring, failed to register Facebook accounts as required by law, failed to comply with GPS monitoring, used illegal drugs, and did not attend a required substance-abuse evaluation. Following a second revocation hearing, the circuit court imposed 1 year and 3 months of his suspended sentence and resuspended the remainder.
The Court of Appeals of Virginia held that the internet conditions violated the First Amendment because they imposed a total or near-total ban that was not narrowly tailored to rehabilitation or public safety. The Commonwealth appealed.
The Court’s Holding
The Supreme Court of Virginia reversed and entered final judgment for the Commonwealth. It held that the circuit court did not violate the First Amendment by revoking and resuspending part of Kuykendall’s sentence based in part on his violation of the internet-use conditions.
The court concluded that the U.S. Supreme Court’s decision in Packingham v. North Carolina provided limited guidance because it concerned a person who had fully served his sentence and was no longer under criminal-justice supervision. Kuykendall, by contrast, remained subject to an unserved, suspended sentence and possessed conditional liberty that could constitutionally be restricted to promote rehabilitation and protect the public.
Reading the conditions together, the court found no total or near-total internet ban. Kuykendall could use internet services with his probation officer’s prior approval and appropriate monitoring, as demonstrated by the permission he received to use the internet for a job search. The conditions were judiciously crafted to further his rehabilitation and reduce the risk of similar crimes, particularly against children.
Key Takeaways
- Packingham does not categorically govern internet restrictions imposed as conditions of probation during an unserved, suspended sentence.
- A probation condition may limit First Amendment freedoms when it judiciously advances rehabilitation and protects the public against the risk of similar offenses.
- Requiring prior approval and monitoring for internet use is a conditional restriction, not a total or near-total ban.
Why It Matters
The decision recognizes a constitutional distinction between restrictions imposed on people who have completed their sentences and those imposed on probationers serving suspended sentences. Virginia courts may place meaningful limits on a probationer’s internet use when those limits are connected to rehabilitation and public safety.
The ruling also emphasizes that courts must evaluate probation conditions as a whole and in their practical operation. An approval-and-monitoring regime will not be treated as an outright internet ban merely because unauthorized access is prohibited.