Circa la c.d. probation di un minore (sospensione condizionale della pena, suppergiù) , la condizione <<that he “not knowingly post, display or transmit on social media or through his cell phone any symbols or information that [he] knows to be, or that the Probation Officer informs [him] to be, gang-related.”>> non è troppo vaga e quindi eccessiavamente limitativa del diritto di parola ex Primo Emendamento
Così L?appello della California 21 luglio 2022 H048553, H048979 (Santa Clara County Super. Ct. No. 19JV43778), in re J.T..
In particolare sul concetto di <social media>:
<< As minor acknowledges, the dictionary provides a definition of the term “social
media.” According to the Oxford English Dictionary, “social media” constitutes
“websites and applications which enable users to create and share content or to
participate in social networking.” (Oxford English Dict. Online (2022)
<https://www.oed.com/view/Entry/183739?redirectedFrom=social+media#eid272386371
> [as of July 21, 2022], archived at: <https://perma.cc/S6WV-Q3SK>.) Thus, a
practical, acceptable, and common-sense definition of the term exists, which is what a
probation condition needs to pass constitutional muster.
In determining the adequacy of the notice provided by a probation condition, we
are guided by the general principle that the condition’s language must only have
“ ‘ “reasonable specificity,” ’ ” not “ ‘mathematical certainty.’ ” (Sheena K., supra,
40 Cal.4th at p. 890.) And, a probation condition is sufficiently specific “ ‘ “if any
reasonable and practical construction can be given its language or if its terms may be
made reasonably certain by reference to other definable sources.” ’ ” (People v. Lopez
(1998) 66 Cal.App.4th 615, 630 (Lopez).)
Here, the term “social media” has a reasonably certain definition: websites where
users are able to share and generate content, and find and connect with other users of
common interests. Moreover, the condition’s purpose—to deter minor from engaging in
street gang activity—lends the needed clarity. A trial court’s reasons for imposing a
probation condition can cure a vagueness problem because “ ‘abstract legal commands
must be applied in a specific context. A contextual application of otherwise unqualified
legal language may supply the clue to a law’s meaning, giving facially standardless
language a constitutionally sufficient concreteness.’ ” (Lopez, supra, 66 Cal.App.4th at
p. 630.)
For example, in In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.), the
appellate court considered whether a probation condition requiring the minor to
“ ‘provide all passwords to any electronic devices, including cell phones, computers or
[notepads], within [the probationer’s] custody or control’ ” was unconstitutionally vague
or overbroad. (Id. at p. 900.) The minor argued that the phrase “ ‘any electronic
devices’ ” could be interpreted to include Kindles, PlayStations, iPods, the codes to his
car, home security system, or even his ATM card. (Id. at p. 904.) The appellate court
observed that the search condition was imposed in response to the trial court’s concern
that the minor would use items such as his cell phone to coordinate with other offenders
and because he had previously robbed people of their iPhones. (Id. at pp. 904-905.)
Therefore, the appellate court concluded that it was reasonably clear that the condition
was meant to encompass “similar electronic devices within [minor’s] custody and control
that might be stolen property, and not, as [minor] conjectures, to authorize a search of his
Kindle to see what books he is reading or require him to turn over his ATM password.”
(Id. at p. 905.)
As in Malik J., the condition’s purpose here—to deter minor from engaging in
street gang activity—provides guidance to minor and clarifies what types of “social
media” the condition intends to target. When deciding to impose gang conditions, the
juvenile court noted that the probation report disclosed that minor “wore red clothing
[and] seemed to hang out with Norte[ñ]o street gang guys,” and that there were “various
photos posted and included in the probation report as well as the Instagram issues and
tattoo issues.” The court’s statements render it “reasonably clear” that the condition was
intended to prohibit street gang-related activity on websites where users are able to share
and generate content. (Malik J., supra, 240 Cal.App.4th at p. 905.)
Minor relies on Packingham v. North Carolina (2017) 137 S.Ct. 1730
(Packingham) for his vagueness claim, but that case is inapposite here. Unlike this case,
Packingham did not involve a probation condition; it involved a law that made it a felony
for registered sex offenders, including those who had completed their sentences, to
“access . . . a number of websites, including commonplace social media websites like
Facebook and Twitter.” (Id. at p. 1733.) The Supreme Court held that the law violated
the First Amendment because it “ ‘burden[ed] substantially more speech than is necessary
to further the government’s legitimate interests’ ” in protecting children from sexual
abuse. (Id. at p. 1736.) Packingham does not address the issue before us—whether the
term “social media,” as used in a probation condition that forbids gang-related postings,
displays, or transmissions, is unconstitutionally vague. “ ‘ ‘ “[C]ases are not authority for
propositions not considered.’ ” ’ ” (People v. Baker (2021) 10 Cal.5th 1044, 1109.)
For all of these reasons, we do not find the term “social media” to be
unconstitutionally vague as used in the challenged probation condition >>