Blog: Calif. court revises minor’s overbroad probation restriction

Friday, April 30, 2010

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Many juvenile probation restrictions are written so broadly that they flagrantly violate First Amendment free-speech rights. A prime example was reflected in a recent California case concerning a probation restriction on a minor with past gang affiliation and weapons charges. The restriction would have prohibited virtually any communication about gang-related symbols.

The measure provided that the minor “not post, display or transmit any symbols or information that the minor knows, or which the Probation Officer has informed him to be gang-related.” The court approved the restriction because upon the juvenile’s arrest, police officers discovered his cell phone containing pictures of him flashing gang signs and images of drugs and money. The minor had admitted that he was affiliated with the “Big Block” gang.

On appeal, the minor known in court papers as “R.S.” contended that the restriction was too broad because it would prohibit even rehabilitative speech about avoiding future gang contact. A plain reading of the restriction would lead to the conclusion that the minor was barred from discussing his past gang affiliations in the context of trying to change his life for the better.

The California appeals court agreed with the juvenile in its April 22 opinion in In Re R.S., explaining: “It would not serve the minor’s reformation or rehabilitation to prohibit him from discussing his gang associations as long as those discussions were aimed at helping him to develop strategies for avoiding future gang involvement.”

The appeals court noted that the purpose of the restriction was to prohibit the minor from sending gang images and gang signs on his cell phone. Therefore, the court modified the restriction to read: “That said minor not post, display or transmit on or through the minor’s cell phone any photographs of symbols or gestures that the minor knows, or which the Probation Officer has informed him to be gang-related.”

Juvenile trial court judges should read probation restrictions carefully to ensure that the language is not overbroad. Though juveniles on probation do not have the same free-expression rights as others, they do not lose all of their First Amendment rights.

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