The Appellate Division continued in relevant part: A statute is unconstitutional if it gives a public official such broad powers “that the exercise of constitutionally protected conduct depends on the official’s own subjective views as to the propriety of the conduct.” Lashinsky (1979) (citation omitted). Likewise, “with laws that carry penal enforcement” such as a violation of a special parole condition, “enforcement should not be left open to broad interpretation nor to the personal view of any particular parole officer.” State v. Jamgochian, (2008) (holding a parolee’s use of the Internet should not be based on “more than the caprice of a parole officer”). Even though parolees don’t enjoy the “full panoply of due process rights,” we still “think it plain that a special condition of parole that cannot pass constitutional muster in the same strict sense that we demand of other statutes with penal consequences must fail.” Here, the parole officer should not be given the authority to make the ban constitutional when we have determined it is unconstitutional.
Prior to Packingham, when we decided in J.B. I the social networking ban was constitutional on its face, we deemed it appropriate for the Board and individual parole officers to apply the escape valve provision to consider parolees’ requests to access a particular social media website. We stressed that “in the abstract” they would not “respond to such requests rigidly or unfairly, or that it will ignore an offender’s individual circumstances.” Hence, “this procedural avenue should be exhausted first, subject to the right of an offender to bring a future as-applied constitutional challenge if necessary.” Ibid. However, in light of Packingham and its progeny noted above, we are now constrained to conclude the social networking ban is unconstitutional on its face. Consequently, the escape valve provision afforded to the Board and parole officers under the social networking ban does not relieve the ban of its unconstitutionality. Neither the Board nor its parole officers should be the gatekeeper to determine whether a person’s, even a parolee’s, constitutional free speech rights via access to social media should be unlocked.
The prosecution likely argued that parolees would still have access to the courts to challenge a parole officer’s refusal to allow social media access. This argument overlooks the fact that legal challenges like these are often time-consuming and expensive. Even a successful challenge would leave the petitioner without the ability to access social media during the months or years that pass while a court or courts consider the challenge.