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State

Does restricting juvenile offenders’ social media use step on free speech?

When it came time to sentence the teen convicted in a South Side armed robbery, a Cook County juvenile court judge imposed what has become a common restriction in the digital age.

The 17-year-old, whom the Tribune is not naming because he was charged as a juvenile, was given 3 years of probation – but also was told to wipe his Facebook feed and any other social media accounts clean of references to “gangs, guns and drugs” and refrain from posting on those topics while on probation.

“I need you to clear your social media,” Judge Kristal Royce Rivers said during his sentencing, according to a higher court ruling. “If you have pictures with you and gang members, if you have pictures with you throwing gang signs, pictures of you even pointing your finger at the screen and looking as if you have a gun, anything that looks like drugs. Remove all of that from your social media. Do not put that back up.”

Recognizing social media’s power to amplify gang disputes and relying on longstanding Illinois law that allows restricting the associations of those under court supervision, Cook County judges are clamping down on teen defendants’ social media postings.

Appellate courts

In recent months, appellate courts have split over how such orders should be drawn without infringing on a defendant’s free-speech rights. Experts said those boundaries may eventually be set by the Illinois Supreme Court.

Hoping to address the higher court’s issues, Juvenile Court Presiding Judge Michael Toomin’s office late last year drafted language for judges to use at sentencing, specifically barring “any photos, videos or messages promoting street gang activity” – including in defendants’ social media timeline prior to being charged with a crime.

Judges have long had the power to restrict defendants’ First Amendment freedoms – barring parolees from associating with gang members, traveling outside a city or, in the case of pedophiles, going online at all.

“The key question here is – Is there a sufficient justification for putting this restriction on defendants?” said University of Chicago law professor Geoffrey Stone, a First Amendment expert. “It’s like saying, ‘We’ll let you out on probation but you can’t go in this neighborhood.’ It’s perfectly sensible that this is what [judges are] trying to do in the complicated world of social media.”

The restrictions come as juvenile probation departments across the country have begun to move away from a strictly enforcement approach and more toward rehabilitating defendants, said Marsha Levick, deputy director of the nonprofit Juvenile Law Center in Philadelphia. In St. Louis County, Missouri, juvenile defendants are required to turn over all their social media identities and passwords to probation officers.

“It’s a tough call,” said Levick about what’s happening in Cook County. “It’s fraught in the climate we’re in right now, it’s fraught in the city of Chicago that’s trying to curb violence … but that doesn’t mean that the Constitution doesn’t still apply.”

Cook County probation officers do not order parolees to turn over their social media IDs and passwords, a department spokesman said, and the officers access only “publicly accessible” postings.

Free-speech rights

Attorneys for the juveniles say their clients’ First Amendment free-speech rights are sometimes trampled by orders so broad they would bar legally permissible postings about a family member who is also a gang member.

Jonathan Pilsner, who works as a public defender in the state appellate court system, said protecting First Amendment rights is a “pinnacle interest” of the judicial system. He successfully appealed a judge’s social media order for a juvenile client.

Safety issue

But prosecutors have argued that protecting a juvenile’s safety is paramount. “It is the single most important interest the government has in juvenile court – this is protecting juveniles … and ensuring that their life going forward is not full of crime,” said Assistant State’s Attorney Tyler Cox during those same oral arguments.

Online threats can have real-world consequences. North Side rapper Shaquon “Young Pappy” Thomas was gunned down in 2015 after posting a video making fun of rival gangs, police have said. Authorities believe earlier attempts on his life led to the deaths of two innocent bystanders who were shot instead.

Juvenile court judges, particularly those presiding over a case involving a violent crime, know well the risks defendants face as their cases progress. Juvenile defendants can be at great risk of becoming victims themselves, attorneys say, because, among other things, they can be released before trial even if charged with a violent crime.

“Over the past year, I’ve had three minors on probation that have been killed – this year, since January,” said Cook County Juvenile Court Judge William Gamboney in a 2016 sentencing hearing for a teen who was 15 when he took part in an armed robbery. “I’ve had approximately 16 that have been shot … these guns on the street are a menace,” the judge said, according to a transcript cited in an appellate ruling.

Sentencing

Judges do take note of defendants’ social media use at sentencings. A juvenile offender was sentenced to juvenile jail until age 21 – the harshest possible sentence for youth offenders – after the judge noted he’d posted more than a dozen pictures of himself holding guns even after she ordered him “not to place crap on social media.”

The teen, a reputed Black Disciples gang member, had also been arrested 26 times – eight of the arrests were for felony charges – by the time he went before Judge Lana Charise Johnson to be sentenced for carrying a loaded .40-caliber handgun in 2016.

His attorney asked for probation.

“We’ve tried to help you through probation – intensive probation services,” Johnson said, “and sometimes you just meet minors that just don’t want any help.”

sschmadeke@chicagotribune.com

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©2018 the Chicago Tribune

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