Aldape v. State: Protecting the First Amendment Rights of Probationers

Read this thought-provoking article related to civil rights, internet access, and First Amendment law matters written by Alina M. Shell…

By Alina M. Shell

Do you remember the one episode of Parks and Rec where Tom (played by Aziz Ansari) is sentenced to spend one week with “no screens”—i.e., no internet access—after crashing his car while tweeting and driving? Parks and Recreation: Sex Education (NBC television broadcast October 18, 2012). The internet ban is played for comic effect; Aziz’s character gets lost driving to his office because he can’t use his GPS; he makes an iPhone out of paper and a physical Pinterest board. It’s funny, but the reality of an internet ban can be far more devastating for convicted persons than Parks and Rec portrays—and can fundamentally undermine people’s First Amendment rights. The Supreme Court of Nevada’s recent en banc decision in Aldape v. State, 139 Nev. Adv. Rep. 42, 535 P.3d 1184 (2023), perfectly illustrates this point.

Antonio Aldape was convicted of a sexual offense that did not involve the internet. Under NRS 176A.410(1)(q), the district court was required to impose, as a condition of probation, a complete ban on Aldape possessing any electronic device capable of accessing the internet and from accessing the internet through any means without approval of his probation officer.

At the time of Aldape’s sentencing, Nevada was “the only state in the nation that statutorily mandates its sentencing courts to impose an identical and total internet ban” on every defendant convicted of a sexual offense who is granted probation. Aldape, 535 P.3d at 1193. Aldape appealed, arguing that NRS 176A.410(1)(q) facially violates the First Amendment. The Supreme Court of Nevada agreed—and in so doing brought Nevada’s probation laws into the 21st century.

Not so long ago, the internet was more novelty than necessity. According to a 1995 Pew Research Center report, 42% of surveyed U.S. adults had never heard of the internet, only 14% were users, and only 3% reported going online every day. Pew Research Center, Americans Going Online … Explosive Growth, Uncertain Destinations (Oct. 16, 1995). Going online in those early days also required a computer and a modem—something that only 54% Americans used at home, work, or school. Id.

Internet usage now, by contrast, is ubiquitous—and critical to daily life. As the Supreme Court of Nevada explained, “there is simply no way to participate in modern society without internet access or a ‘device capable of accessing the Internet.’” Aldape, 535 P.3d at 1191. People don’t need computers to get online anymore—phones, tablets, and even household appliances are now capable of accessing the internet. Newspapers, magazines, and other traditional news media have gone online. Job searches are conducted online. Shopping, communicating with family members and friends, renting a home, scheduling appointments with doctors or probation officers, civic participation, and myriad of other expressive activities are virtually impossible without access to the internet. These advancements in technology have an undeniable result: the internet has become “a First Amendment forum of historically unimaginable reach.” Aldape, 553 P.3d at 1190.

Because the internet is now a vast and indispensable First Amendment forum, probation conditions which limit access to it must be narrowly tailored to further a significant government interest—while still leaving open “ample alternative channels for communication.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). Certainly, it’s easy to understand the government interest animating NRS 176A.410(1)(q). The state and the public have a strong interest in preventing recidivism by people convicted of sex offenses. A blunt tool like an automatic and complete internet ban, however, undermines those important goals—and ends up trampling on constitutional rights.

Take the case of Aldape. His conviction was for a sex offense—something that the public and the state have an undeniable interest in punishing and preventing. But his offense did not involve the internet. Thus, a complete internet ban wasn’t tailored to Aldape’s crime, and the mandatory nature of the statute prevented the sentencing court from fashioning some alternative condition better fit the nature of Aldape’s offense and his personal characteristics.

The Aldape decision represents a significant step forward in protecting the First Amendment rights of people released on probation. Now that the Supreme Court of Nevada has declared NRS 176A.410(1)(q) unconstitutional, sentencing courts can craft conditions of release which ensure the public’s safety while respecting constitutional rights. Because in the 21st century, an internet ban is no joking matter.

About the author

Alina M. Shell is Of Counsel with Armstrong Teasdale LLP in Las Vegas. Alina primarily focuses on civil litigation and appeals and has extensive experience in litigating a variety of First Amendment issues.

About the article

© 2024 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

This article was originally published in the Communiqué (Feb. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-feb-2024/.

The articles and advertisements appearing in Communiqué magazine do not necessarily reflect the opinion of the CCBA, the CCBA Publications Committee, the editorial board, or the other authors. All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.

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