Bring Me his Head and Hands: Unconstitutional Internet Proscription

Dear friends, let’s begin with a little story about the death of liberty at Rome. When Mark Antony had the chance, he proscribed (read: murdered) the orator Cicero. To emphasize the effective silencing of his largest critic, the triumvir had Cicero’s head and hands put on public display. If you think we have progressed from mutilations and ostentatious displays of State power, note the case of Alex D. Phillips. Now this young man is no Cicero. But the twenty-year old is just as dead, as far as the Internet is concerned.

When Phillips was 17, he posted (probably with malice in his heart) two nude photos of his 16 year-old ex-girlfriend on his MySpace page.  The Furies of Wisconsin descended, arresting Phillips and charging him with sexual exploitation of a minor, possession of child pornography, defamation, and causing mental harm to a child. 

The crafty DA created a giant gift for Phillips, a huge wooden horse called Plea Bargain. The State would drop the kiddie porn, exploitation, and defamation charges, if Phillips would plead to causing mental harm to a child. Phillips accepted this gift.  The court sentenced Phillips to a three-year probation and 100 hours of community service. He surely considered himself lucky not to be on a sex offenders’ list. But dear friends, Phillips’ name is on a list after all, an execution order hidden inside the proffered gift.

For the duration of his probation, Phillips is “not to own, operate or possess a computer, software, modem, cell phone or any gaming system that has internet access capabilities including [F]acebook and [M]y[S]pace.” Phillips is, for all intents and purposes, digitally dead.

Again, Phillips is no Cicero: the thriving world of American Rhetoric will survive his absence. But while this order does not directly impact your reading and listening habits, it should scare the shit out of you. Just for fun, let’s tick off a few of the ways Phillips is screwed:

- Education: If college was on the horizon before this sentence, it certainly isn’t now. Even if Phillips were to find a university with a paper application and willing to accept a convicted felon, he could not complete electronic registration or course assignments. Maybe he lives near a library with a good card catalogue.

- Employment: A job that does not require any internet access…hmmm…maybe a welding job advertised in the local paper. No for him. And I’m fairly sure most service jobs entail the use of an internet connected register.

- Entertainment: Atari 2600 all the way.

- Legal: No pro se representation if he reoffends, since he can't file electronically. 

So, the sentence will give us an undereducated, underemployed, and bored felon. Brilliant. Why don’t we cut out his tongue and give him a flamethrower while we’re at it?

Now the real question is, could this happen to you? This was a plea deal; a product of the notorious legal underbelly where shady things go unchallenged so as not to scuttle the bargain. But as part of a conviction, could you lose your access to the Internet and any technology that is capable of accessing it? Can the court effectively end your power of speech?

The French wouldn’t agree, as they seem to think that access to the Internet is a fundamental right for some strange reason. The Conseil Constitutionnel, in gutting the HADOPI Création et Internet law, held that "fundamental rights . . . and values apply to online information and communication services as much as they do to the offline world.” Internet bans threaten the “liberty of expression” which is a “fundamental right[] that only a judge can rule on.”

But thankfully, our nation is able to resist the corrupting influences of foreign courts (see the congressional temper tantrum following a shout-out to foreign law in Lawrence vs. Texas). Besides, a judge had to sign off on this sentence. So if we can’t rely on the foreign precedent, let’s just run this sort of sentence through the old balancing test of Griswold (valid interest, reasonable, balancing):

  1. Are there conflicting interests? Sure – “protecting the children” vs. “freedom of speech/ interest in employment/ not hanging oneself out of shame and boredom.”
  2. Is the State’s action a reasonable way to satisfy it’s interest? I’m gonna go out on a limb here and say no. We can safely stop here and avoid any true balancing, because there are many ways to “protect the children” short of digital execution.

Let’s pray that the State never intends to enforce the sentence in this case. Maybe this was just a method to dissuade Phillips from future ventures in online pornography. I certainly hope that this type of sentence won’t become widespread. I become homicidal when my connection is slow. I shudder to think what would happen to society if whole castes were denied access to the font of wisdom.*

*(South Park had a decent guess)

(Andrew Moshirnia is a rising second-year law student at Harvard Law School and a CMLP legal intern.)


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