2019 IL 123643

IN THE SUPREME COURT OF THE STATE OF ILLINOIS (Docket No. 123643) THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CONRAD ALLEN MORGER, Appellant. Opinion filed November 21, 2019. JUSTICE KARMEIER delivered the judgment of the court, with opinion. Justices Thomas, Kilbride, Garman, Theis, and Neville concurred in the judgment and opinion. Chief Justice Burke took no part in the decision. OPINION ¶1 In this appeal, the defendant, Conrad Morger, challenges, as overbroad and facially unconstitutional, the probationary condition set forth in section 5-6- 3(a)(8.9) of the Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5- 6-3(a)(8.9) (West 2016)). Defendant submits that section’s “complete ban on accessing ‘social networking websites’ as a condition of probation is unreasonable and unconstitutional under the First Amendment.” The appellate court rejected that argument. 2018 IL App (4th) 170285. We allowed the defendant’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. July 1, 2013)) and now reverse, in part, the judgment of the appellate court. ¶2 STATUTES PERTINENT TO DEFENDANT’S SEX OFFENDER PROBATION ¶3 Multiple statutory conditions of probation were imposed in this case, but we consider four subsections of section 5-6-3 of the Code of Corrections (730 ILCS 5/5-6-3 (West 2016)) of particular significance in analyzing the issue presented for our consideration: id. § 5-6-3(a)(8.7) (mandatory for a child sex offender), id. § 5- 6-3(a)(8.9) (mandatory if convicted of a sex offense as defined in the Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2016))), 730 ILCS 5/5-6- 3(a)(11) (West 2016) (mandatory if convicted of a sex offense as defined in SORA), and id. § 5-6-3(b)(18) (discretionary if convicted of a sex offense as defined in SORA). The pertinent conditions provide: “(a) The conditions of probation and of conditional discharge shall be that the person: *** (8.7) if convicted for an offense *** that would qualify the accused as a child sex offender ***, refrain from communicating with or contacting, by means of the Internet, a person who is not related to the accused and whom the accused reasonably believes to be under 18 years of age; ***[1] *** (8.9) if convicted of a sex offense as defined in [SORA] committed on or after January 1, 2010 (the effective date of Public Act 96-262), refrain

123644 from accessing or using a social networking website as defined in Section 17-0.5 of the Criminal Code of 2012;

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(11) if convicted of a sex offense as defined in Section 2 of [SORA] *** may not knowingly use any computer scrub software on any computer that the sex offender uses; ***

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(b) The Court may in addition to other reasonable conditions relating to the nature of the offense or the rehabilitation of the defendant as determined for each defendant in the proper discretion of the Court require that the person:

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(18) if convicted for an offense committed on or after June 1, 2009 (the effective date of Public Act 95-983) that would qualify as a sex offense as defined in [SORA]:

(i) not access or use a computer or any other device with Internet capability without the prior written approval of the offender’s probation officer, except in connection with the offender’s employment or search for employment with the prior approval of the offender’s probation officer;

(ii) submit to periodic unannounced examinations of the offender’s computer or any other device with Internet capability by the offender’s probation officer, a law enforcement officer, or assigned computer or information technology specialist, including the retrieval and copying of all data from the computer or device and any internal or external peripherals and removal of such information, equipment, or device to conduct a more thorough inspection;

(iii) submit to the installation on the offender’s computer or device with Internet capability, at the subject’s expense, of one or more hardware or software systems to monitor the Internet use; and

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(iv) submit to any other appropriate restrictions concerning the offender’s use of or access to a computer or any other device with Internet capability imposed by the offender’s probation officer[.]” Id. § 5-6-3(a)(8.7), (a)(8.9), (a)(11), (b)(18).

The definition of a “social networking website” appears at section 17-0.5 of the Criminal Code of 2012 (720 ILCS 5/17-0.5 (West 2016)):

“ ‘Social networking website’ means an Internet website containing profile web pages of the members of the website that include the names or nicknames of such members, photographs placed on the profile web pages by such members, or any other personal or personally identifying information about such members and links to other profile web pages on social networking websites of friends or associates of such members that can be accessed by other members or visitors to the website. A social networking website provides members of or visitors to such website the ability to leave messages or comments on the profile web page that are visible to all or some visitors to the profile web page and may also include a form of electronic mail for members of the social networking website.”

¶4 BACKGROUND

¶5 The State’s uncontested evidence, resulting in defendant’s convictions, is more fully set forth in the appellate court’s original opinion. See 2016 IL App (4th) 140321 (Morger I) (remanding for resentencing because the circuit court had delegated the responsibility of imposing conditions of probation to “Court Services”). We summarize here only those facts pertinent to our disposition.

¶6 In January 2013, defendant, who was 20 years old (born May 14, 1992), was charged with aggravated criminal sexual abuse and criminal sexual abuse. Each charge alleged that defendant’s criminal acts—perpetrated against his teenage sister—occurred between August 2010 and November 2012. The evidence at defendant’s bench trial established that defendant, while in the family residence, touched his sister’s breast and vagina and that he had her touch his penis. Defendant was convicted of both charges. As the State points out, presentencing evaluation by a clinician concluded that defendant was viewed as “a moderate to high risk to

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reoffend,” but it was “likely” that he could be safely treated in the community with appropriate supervision. The evaluator recommended, among other things, that defendant be prohibited from having contact with anyone under 18 years of age and from viewing, owning, or downloading pornography or sexually stimulating material. ^[2] Statutory conditions of probation referenced at the outset of this opinion implemented those recommendations. Those conditions and a host of others (18 in all) were ultimately imposed by the McLean County circuit court—after remand from the appellate court—as part of defendant’s four-year sentence of probation.

¶7 When the case again came before the appellate court, defendant challenged multiple conditions of his probation—including the condition challenged here—all of which were upheld. 2018 IL App (4th) 170285 (Morger II). Defendant’s constitutional challenge to the flat ban on the use of social media was premised principally, as it is now, upon the United States Supreme Court’s decision in Packingham v. North Carolina, 582 U.S. ___, 137 S. Ct. 1730 (2017). Morger II, 2018 IL App (4th) 170285, ¶ 69.

¶8 In Packingham, defendant, a registered sex offender who had completed his sentence, was convicted for violating a North Carolina law that barred registered sex offenders from gaining access to commercial social networking websites. The Supreme Court concluded the North Carolina statute impermissibly restricted lawful speech in violation of the first amendment. Packingham, 582 U.S. at ___, 137 S. Ct. at 1737.

¶9 The appellate court found this case

“different from Packingham in two important respects: (1) defendant’s access to social media is not foreclosed altogether, as was the case in Packingham, and (2) defendant has not yet completed his sentence and his probation conditions cannot ‘endure for 30 years or more.’ Packingham, 582 U.S. at ___, 137 S. Ct. at 1734.” (Emphasis in original.) Morger II, 2018 IL App (4th) 170285, ¶ 83.

¶ 10 With respect to the first distinction, the appellate court construed the conditions of defendant’s probation so as to allow a probation officer to “temporarily *** lift

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or modify a condition if the probation officer believed doing so would be appropriate, given both defendant’s need to have that condition temporarily lifted or modified, as well as the need to protect the public, particularly children.” Id. ¶ 82. The appellate court believed the broad powers granted a probation officer under subsection (b)(18) of section 5-6-3—a discretionary condition of probation imposed in this case—allowed the probation officer to “lift” what, by its terms, appears to be the mandatory, unequivocal ban on access to social media imposed by subsection (a)(8.9).

¶ 11 The appellate court also found Packingham distinguishable because (1) defendant was still serving his sentence, unlike Packingham, and thus defendant could be subjected to restrictions that would be unconstitutional if applied to Packingham and (2) the ban on defendant’s access to social media was only temporary—for the duration of his sentence—whereas the ban in Packingham had no temporal limitation—it was, in effect, a lifetime ban.

¶ 12 Before the appellate court, defendant argued that multiple conditions of his probation were “unconstitutional, overly broad, and unreasonable.” The appellate court rejected those arguments. Before this court, he argues, on the basis of overbreadth, only one condition is unconstitutional—the “complete ban” on the use of social media.

¶ 13 ANALYSIS

¶ 14 As a preliminary matter, the parties have acknowledged the completion of defendant’s sentence, which would render this matter moot. Nonetheless, they submit that an exception to the mootness doctrine applies.

¶ 15 Although, as a general rule, we will not decide moot questions (In re Jarquan B., 2017 IL 121483, ¶ 17), this court has recognized exceptions to that rule (see In re Alfred H.H., 233 Ill. 2d 345, 354-55 (2009) (discussing the public interest exception, the capable-of-repetition-yet-avoiding-review exception, and the collateral consequences exception to the mootness doctrine)). The public interest exception applies when (1) the question presented is of a public nature, (2) there is a need for an authoritative determination for the future guidance of public officers, and (3) there is a likelihood of future recurrence of the question. In re Lance H.,

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2014 IL 114899, ¶ 13. This case meets those criteria. The issue implicates first amendment rights and access to social media websites—which the Supreme Court has characterized as “the modern public square.” See Packingham, 582 U.S. at ___, 137 S. Ct. at 1737. The flat ban on access to those websites, by its terms, applies to any probationer convicted of a sex offense as defined in SORA. Hence, the question of its constitutionality will recur frequently until authoritatively resolved by this court. We thus consider the issue presented under the public interest exception.

¶ 16 Principles of Review

¶ 17 The probationary condition at issue is statutory and mandatory for all probationers who are convicted of a sex offense as defined in SORA. The constitutionality of a statute is a question of law that we review de novo. People v. Minnis, 2016 IL 119563, ¶ 21. All statutes are presumed constitutional; the party challenging the constitutionality of a statute has the burden of clearly establishing its invalidity. Id. This court must construe the statute so as to uphold its constitutionality if reasonably possible. Id.

¶ 18 With respect to our probation system, specifically, this court has recognized that the State of Illinois has a legitimate interest in promoting the effective operation of its probation system, which serves the purposes of rehabilitating probationers while punishing them and protecting the public from crime. People v. Lampitok, 207 Ill. 2d 231, 250 (2003). The effectiveness of that system will, at times, necessarily involve limitations on constitutional rights the probationer would otherwise enjoy. As the Supreme Court observed in Griffin v. Wisconsin, 483 U.S. 868, 874 (1987):

“To a greater or lesser degree, it is always true of probationers (as we have said it to be true of parolees) that they do not enjoy ‘the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.’ Morrissey v. Brewer, 408 U.S. 471, 480 (1972).”

¶ 19 In accord with those observations, this court, in In re J.W., 204 Ill. 2d 50, 78 (2003), noted that a condition of probation that impinges on fundamental constitutional rights is not automatically deemed invalid, as even fundamental

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constitutional rights are not absolute and may be reasonably restricted in the public interest. When deciding the propriety of a condition of probation imposed in a particular case, whether explicitly statutory or not, the overriding concern is reasonableness. Id. “To be reasonable, a condition of probation must not be overly broad when viewed in the light of the desired goal or the means to that end.” Id. The court in J.W. explained, in a context similar to the one now before this court: “In other words, ‘ “[w]here a condition of probation requires a waiver of precious constitutional rights, the condition must be narrowly drawn; to the extent it is overbroad it is not reasonably related to the compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.” ’ ” Id. (quoting In re White, 158 Cal. Rptr. 562, 565-66 (Ct. App. 1979), quoting People v. Mason, 488 P.2d 630, 635 (Cal. 1971)).

“When assessing the reasonableness of a condition of probation it is appropriate to consider whether the restriction is related to the nature of the offense or the rehabilitation of the probationer. [Citations.] Other considerations are: (1) whether the condition of probation reasonably relates to the rehabilitative purpose of the legislation, (2) whether the value to the public in imposing this condition of probation manifestly outweighs the impairment to the probationer’s constitutional rights, and (3) whether there are any alternative means that are less subversive to the probationer’s constitutional rights, but still comport with the purposes of conferring the benefit of probation.” Id. at 79.

¶ 20 In J.W., this court concluded that a condition of probation that, for all purposes, “banished” the 12-year-old defendant from South Elgin—where he had resided with his parents and where the sex crimes were committed—was unconstitutionally overbroad as it “fail[ed] to make any provision for J.W. to enter the area for legitimate purposes.” Id. at 81.

¶ 21 This defendant argues that the statutory prohibition on probationers accessing social media websites is facially unconstitutional as overbroad because, inter alia, it admits of no exceptions for legitimate purposes.

¶ 22 “A statute is overbroad on its face if it prohibits constitutionally protected activity as well as activity that may be prohibited without offending constitutional rights.” People v. Relerford, 2017 IL 121094, ¶ 50. In order to survive intermediate

123650 scrutiny, a content-neutral regulation of protected speech—such as that at issue here—

“(1) must serve or advance a substantial governmental interest unrelated to the suppression of free speech and (2) must not burden substantially more speech than necessary to further that interest—or in other words, it must be narrowly tailored to serve that interest without unnecessarily interfering with first amendment freedoms.” Minnis, 2016 IL 119563, ¶ 36.

¶ 23 The overbreadth doctrine permits a party to challenge a statute as a facial violation of the first amendment, even if that party’s conduct would not fall within the amendment’s protection. Relerford, 2017 IL 121094, ¶ 50. Although in a typical facial challenge, a defendant would have to establish that no set of circumstances exist under which the statute would be valid, in the first amendment context, a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep. People v. Clark, 2014 IL 115776, ¶ 11; Minnis, 2016 IL 119563, ¶ 44 (concluding that statute did no more than eliminate the exact source of the evil it sought to remedy); see also Doe v. Prosecutor, Marion County, Indiana, 705 F.3d 694, 698 (7th Cir. 2013) (noting that the United States Supreme Court “has invalidated bans on expressive activity that are not the substantive evil if the state had alternative means of combating the evil”).

¶ 24 In this case, the statute’s ban on the use of social media applies to all probationers who are convicted of a sex offense, as defined in the SORA, whether or not a minor was involved and whether or not the use of social media was a factor in the commission of the offense.

¶ 25 Packingham v. North Carolina

¶ 26 The parties recognize that the Supreme Court’s decision in Packingham is pivotal in this case. As such, we look, in detail, at the observations and findings of the Packingham Court.

¶ 27 As noted, North Carolina made it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that

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the site permits minor children to become members or to create or maintain personal Web pages.” N.C. Gen. Stat. § 14-202.5(a) (2009). The statute included two express exemptions. The statutory bar did not extend to websites that “[p]rovid[e] only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform.” Id. § 14-202.5(c)(1). The law also did not encompass websites that have as their “primary purpose the facilitation of commercial transactions involving goods or services between [their] members or visitors.” Id. § 14-202.5(c)(2); see Packingham, 582 U.S. at ___, 137 S. Ct. at 1734.

¶ 28 At the outset of an opinion that would ultimately strike down the North Carolina statute, the Supreme Court repeatedly emphasized the importance of social media in modern life:

“While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular. ***

Social media offers ‘relatively unlimited, low-cost capacity for communication of all kinds.’ Reno, supra, at 870. On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos. On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship. And on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner. *** In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics ‘as diverse as human thought.’ Reno, supra, at 870 (internal quotation marks omitted).

***

*** [T]he Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.” Packingham, 582 U.S. at ___, 137 S. Ct. at 1735-36.

- 10 - ¶ 29 Though extolling the virtues of the Internet and social media, the Court tempered its enthusiasm with the recognition that those media of communication are subject to abuse by criminal elements: “For centuries now, inventions heralded as advances in human progress have been exploited by the criminal mind. New technologies, all too soon, can become instruments used to commit serious crimes. *** So it will be with the Internet and social media.” Id. at ___, 137 S. Ct. at 1736. ¶ 30 In that regard, the Court immediately turned to a discussion of sex crimes committed against children—tacitly acknowledging that social media websites furnish a ready means for orchestrating the sexual abuse of children: “[A]s this Court has recognized, ‘[t]he sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.’ Ashcroft v. Free Speech Coalition, 535 U. S. 234, 244 (2002). And it is clear that a legislature ‘may pass valid laws to protect children’ and other victims of sexual assault ‘from abuse.’ See id., at 245; accord, New York v. Ferber, 458 U. S. 747, 757 (1982). The government, of course, need not simply stand by and allow these evils to occur. But the assertion of a valid governmental interest ‘cannot, in every context, be insulated from all constitutional protections.’ Stanley v. Georgia, 394 U. S. 557, 563 (1969).” Id. at ___, 137 S. Ct. at 1736. ¶ 31 En route to resolving the issue before the Court—applying intermediate scrutiny to a statute it assumed was content-neutral—the Supreme Court made two further assumptions: (1) the scope of the statute applied to commonplace social networking sites like Facebook, LinkedIn, and Twitter, and (2) the first amendment permits a state to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that presages a sex crime, like contacting a minor or using a website to gather information about a minor. The Court emphasized: “Specific laws of that type must be the State’s first resort to ward off the serious harm that sexual crimes inflict.” Id. at ___, 137 S. Ct. at 1737. The Court then cryptically added in dictum: “(Of importance, the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer - 11 - subject to the supervision of the criminal justice system is also not an issue before the Court.)” Id. at ___, 137 S. Ct. at 1737. 3 ¶ 32 That said, the Court determined that the statute was not narrowly tailored to serve a significant governmental interest. Id. at ___, 137 S. Ct. at 1736-37. “Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. *** By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal 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.” Id. at ___, 137 S. Ct. at 1737. ¶ 33 The Court concluded: “In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.” Id. at ___, 137 S. Ct. at 1737. ¶ 34 The interpretation of those last two sentences carries momentous weight in our resolution of this case. In the wake of Packingham, federal decisions following the Court’s decision have tended to focus only on the first of those two, emphasizing the Court’s reference to “persons who have completed their sentences,” as a limitation of the Court’s holding.