In Commonwealth v. Kuykendall the court reversed the Court of Appeals and upheld a probation condition restricting almost all internet use, distinguishing the case from Packingham v. North Carolina and emphasizing differences in custody status and supervision.
The Virginia Supreme Court held that a near-total internet restriction imposed as a probation condition did not violate the First Amendment.
The court distinguished Packingham v. North Carolina because Kuykendall was on post-release supervision, not serving his full sentence in the same way as in Packingham.
The decision reverses the Court of Appeals, which had found the trial court failed to justify how the restriction served rehabilitative or public-safety goals.
# Case outcome and why it matters Appeals and held that a probation condition banning near-total internet use did not violate the First Amendment. Justice D. Arthur Kelsey wrote the 14-page opinion, joined by a majority of the court. The opinion draws a line between this case, Commonwealth v. Kuykendall, and the U.S. Supreme Court's Packingham v. North Carolina decision.
# How the courts differed Packingham as controlling and concluded the trial court had not articulated how the internet restriction served rehabilitative or public-safety purposes. The Virginia Supreme Court rejected that analysis, stressing factual differences between the cases. Packingham involved a statutory ban on social-network access for a person who had already completed his sentence, while Kuykendall was on post-release supervision when the restriction was imposed.
The Virginia opinion states that the two cases "have only one thing in common — they were both convicted of sex crimes." Justice Kelsey wrote that they differ in custody and supervision status and in the record the trial court considered in setting probation conditions.
# The underlying facts
# Who argued the case Kuykendall was represented by Samantha Thames of the Virginia Indigent Defense Commission. The Commonwealth was represented by the Office of the Attorney General. Assistant Solicitor General Mikaela A. Phillips filed briefs criticizing the Court of Appeals' reliance on Packingham and arguing the lower court had minimized Kuykendall's internet-related conduct while on probation. Deputy Solicitor General R. Trent Taylor argued the case before the Virginia Supreme Court.
# What the opinion emphasizes Justice Kelsey's opinion focuses on the different contexts in which free-speech restrictions arise: broad statutory bans applied to persons who completed a sentence versus individualized probation conditions imposed while an individual remains under supervision. The court found the latter context permits different considerations, including public safety and rehabilitative objectives tied to the probationer's specific conduct.
# Practical implications This decision suggests Virginia courts will apply a contextual analysis when reviewing internet-related probation conditions rather than treating Packingham as categorically controlling. Probationers who raise First Amendment challenges will face scrutiny of the supervision status, the record of individual conduct, and the stated corrective or safety aims that probation conditions are meant to serve.
so the individual defendants are entitled to qualified immunity, a court rules (citing cases where employees were fired for right-wing speech that many had likewise found offensive).
rejected on First Amendment grounds.
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