IN THE SUPREME COURT OF THE STATE OF WASHINGTON

)

STATE OF WASHINGTON, )

)

Respondent, ) No. 98493-0

) 

v. )

)

CHRISTOPHER R. JOHNSON, ) 

) 

Petitioner. ) Filed : June 10, 2021

_______________________________)

GONZÁLEZ, C.J.— Christopher Johnson was convicted of child sex crimes. 

He challenges a condition of community custody as unconstitutionally overbroad

and vague. This condition will require Johnson to access the Internet only through 

filters approved by his community custody officer. We agree that this condition 

could implicate Johnson’s constitutional rights and must be applied carefully by his 

future community custody officer. However, when read in light of Johnson’s

convictions for attempted second degree child rape, attempted sexual abuse of a 

minor, and communication with a minor for immoral purposes, we conclude that 

the condition is neither overbroad nor vague. Accordingly, we affirm.

FILE 

IN CLERK’S OFFICE

SUPREME COURT, STATE OF WASHINGTON 

JUNE 10, 2021

THIS OPINION WAS FILED 

FOR RECORD AT 8 A.M. ON

JUNE 10, 2021

SUSAN L. CARLSON 

SUPREME COURT CLERK 
State v. Johnson, No. 98493-0 

2 

FACTS

This case began with a sting operation conducted by the Missing and 

Exploited Children Task Force, which looked for potential child sex predators. 

Task force members advertised on the Craigslist website, seeming to invite sex. 

Johnson responded to one of these advertisements. Over the next few hours, he 

and a task force member pretending to be a 13 year old girl exchanged text 

messages and e-mail where they discussed meeting for sex, possibly in exchange 

for money. They arranged a rendezvous in a public place. Johnson was arrested 

not long after he arrived at the rendezvous. 

Johnson was charged with attempted second degree rape of a child, 

attempted commercial sexual abuse of a minor, and communication with a minor 

for immoral purposes. Johnson’s defense theory was that he went on to Craigslist 

looking for casual sex with an adult woman and that he had no intention of having 

sex with a child. A jury found Johnson guilty as charged. 

At sentencing, the State specifically asked the judge to prohibit Johnson 

from accessing 

the worldwide web through any means including but not limited to the 

internet, unless authorized. I’m not asking he never can, but that it be 

authorized by the [community custody officer] so that that could be tracked.
State v. Johnson, No. 98493-0 

3

That was the way in which this crime was committed. And that is absolutely 

critical to combatting recidivism and to protecting the community.

Verbatim Report of Proceedings (May 18, 2018) at 16. Johnson strenuously 

objected: 

We are objecting to the majority of the probation conditions that [the State]

asked for. No access to the worldwide web. That is simply too broad. I don’t 

know how a person would function in today’s world without accessing the 

web. You can’t send an e-mail to your wife. You can’t look for a job. You 

can’t sell your car. I think it’s appropriate that there be some monitoring, 

there are filters that can be imposed. Those are appropriate. But simply 

saying no access to the worldwide web unless specifically authorized by a 

[community custody officer] is overly broad.

Id. at 37-38. The judge clearly wrestled with this issue: 

I don’t want to exclude Mr. Johnson entirely from accessing the web. . . . 

But I think the issue has to be with regards to filtering. And so I don’t know 

how to deal with that at this point. I don’t want to exclude him entirely. But I 

think that there has to be some mechanism to control so he’s not on web 

sites related to the conduct here. So I don’t know how you want to deal with 

that.

[THE STATE]: Except through a filter approved by [the Department of 

Corrections]?

THE COURT: Yeah. Filter approved or something like that.

Id. at 51-52. The judge ultimately decided that Johnson shall “not use or access the 

World Wide Web unless specifically authorized by [his community custody 

officer] through approved filters” as a condition of community custody. Clerk’s 

Papers at 99. 

Johnson appealed on several grounds. The Court of Appeals affirmed on all 

issues. State v. Johnson, 12 Wn. App. 2d 201, 205-06, 460 P.3d 1091 (2020). We 
State v. Johnson, No. 98493-0 

4

granted review limited to Johnson’s challenge to the limitation on his future 

Internet use. 196 Wn.2d 1001 (2020).

ANALYSIS

Johnson challenges this community custody condition as unconstitutionally 

overbroad and vague. We review community custody conditions for abuse of 

discretion. See State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008) (citing 

State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993)). Among other things, 

“[d]iscretion is abused if it is exercised on untenable grounds or for untenable 

reasons.” State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002) (citing 

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). 

It is manifestly unreasonable to impose an unconstitutional condition of 

community custody. State v. Hai Minh Nguyen, 191 Wn.2d 671, 678, 425 P.3d 

847 (2018) (citing Bahl, 164 Wn.2d at 753). But “[l]imitations upon fundamental 

rights are permissible, provided they are imposed sensitively.” Riley, 121 Wn.2d 

at 37 (citing United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 

1975)). Restrictions on Internet access have both due process and First 

Amendment implications. See Packingham v. North Carolina, __ U.S. __, 137 S. 

Ct. 1730, 1735, 198 L. Ed. 2d 273 (2017) (citing Reno v. Am. Civil Liberties 

Union, 521 U.S. 844, 868, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997)); Blondheim 

v. State, 84 Wn.2d 874, 878, 529 P.2d 1096 (1975) (citing Grayned v. City of 
State v. Johnson, No. 98493-0 

5

Rockford, 408 U.S. 104, 114, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972)); U.S.

CONST. amend. I. Judges may restrict a convicted defendant’s access to the 

Internet, but those restrictions must be narrowly tailored to the dangers posed by 

the specific defendant. State v. Padilla, 190 Wn.2d 672, 678, 416 P.3d 712 (2018); 

United States v. Holena, 906 F.3d 288, 290 (3d Cir. 2018) (citing United States v. 

Albertson, 645 F.3d 191, 197 (3d Cir. 2011)).

Johnson characterizes this condition as prohibiting him from using the 

Internet without his community corrections officer’s approval. We disagree with 

this characterization. When taken in light of the judge’s oral comments, we 

conclude it merely requires that Johnson use the Internet only through filters that 

have been approved by his community corrections officer. It should not be read to 

require him to seek permission every time he would use the Internet.

1

 With this 

characterization in mind, we turn to his arguments. 

1. OVERBREADTH 

Johnson argues that the restriction on his Internet use is not narrowly 

tailored to further the goals of the Sentencing Reform Act of 1981, ch. 9.94A 

 1 We respectfully disagree with the dissent’s characterization of the condition as a “total ban on 

Johnson’s access to the Web, subject to exceptions yet to be determined.” Dissent at 6. Properly 

read, this condition merely requires Johnson to use approved filters. We acknowledge that in an 

unpublished decision, the Court of Appeals found a community custody condition of “‘No 

internet use unless authorized by treatment provider and Community Custody Officer’” was 

unconstitutionally vague and overbroad. State v. Forler, No. 79079-0-I, slip op. at 26-28 (Wash. 

Ct. App. June 10, 2019) (unpublished), http://www.courts.wa.gov/opinions/pdf/790790.pdf,
State v. Johnson, No. 98493-0 

6

RCW. We disagree. The act’s stated goals include preventing recidivism, 

protecting the public, and providing offenders with opportunities to improve 

themselves. RCW 9.94A.010. Johnson committed his crimes using the Internet. 

A proper filter restricting his ability to use the Internet to solicit children or 

commercial sexual activity will reduce the chance he will recidivate and will also 

protect the public. While a blanket ban might well reduce his ability to improve 

himself, a properly chosen filter should not. We encourage Johnson’s future 

community custody officer to have a meaningful conversation with Johnson about 

appropriate Internet use and to choose filters that will accommodate Johnson’s 

legitimate needs. 

Johnson also argues that the limitation on his Internet use is similar to 

limitations imposed by a North Carolina statute the United States Supreme Court 

struck down in Packingham, 137 S. Ct. at 1733-34, 1736-37. North Carolina 

essentially barred anyone convicted of certain sex offenses from many popular

social media sites, including Facebook and Twitter. Id. at 1733, 1737. The Court 

assumed that intermediate scrutiny applied, found the ban was not narrowly 

tailored to further a significant governmental interest, and concluded that it 

burdened substantially more speech than was necessary to further the 

 

review denied, 194 Wn.2d 1011 (2019). That condition is substantively different from the one 

present here, and the State did not petition for review of that holding. 
State v. Johnson, No. 98493-0 

7

government’s interest. Id. at 1736-38. The Court also noted that a more narrowly 

tailored restriction might well survive constitutional scrutiny:

it can be assumed that the First Amendment permits a State to enact specific, 

narrowly tailored laws that prohibit a sex offender from engaging in conduct 

that often presages a sexual crime, like contacting a minor or using a website 

to gather information about a minor. Specific laws of that type must be the 

State’s first resort to ward off the serious harm that sexual crimes inflict.

Id. at 1737 (citation omitted). 

We conclude that the community custody condition here is significantly 

narrower than the statute struck in Packingham. Johnson is not prohibited from 

accessing any particular social media site. Instead, he is required to use the 

Internet only through filters approved by his community custody officer. While 

requiring Johnson to use an overzealous filter might violate the First Amendment, 

that is a question of appropriate enforcement and a question for another day.

2

We conclude that this condition is not unconstitutionally overbroad. 

2. VAGUENESS

A condition of community custody is unconstitutionally vague if it either 

fails to give fair warning of what is forbidden or fails to give ascertainable 

 2 Johnson also suggests that the condition is potentially underinclusive because it restricts his 

access to the World Wide Web, not the entire Internet. A substantially underinclusive law may 

raise First Amendment concerns when, for example, the law claims a secular purpose, burdens a 

particular religious practice, and does not target similar conduct outside of that practice. See, 

e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543-44, 113 S. Ct. 

2217, 124 L. Ed. 2d 472 (1993). But even assuming that the condition would not allow a 

community custody officer to restrict Internet use outside the World Wide Web (an issue that is 
State v. Johnson, No. 98493-0 

8

standards that will prevent arbitrary enforcement. Bahl, 164 Wn.2d at 752-53

(citing City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)). 

“If ‘persons of ordinary intelligence can understand what the [law] proscribes, 

notwithstanding some possible areas of disagreement, the [law] is sufficiently 

definite.’” Id. at 754 (alterations in original) (quoting Douglass, 115 Wn.2d at

179). 

In Bahl, we held that a condition of community custody prohibiting the 

offender from possessing either pornography or sexually explicit material related 

to his deviancy was unconstitutionally vague. 164 Wn.2d at 743 (citing record),

758, 761. We concluded that the term “pornography” was itself vague, and since 

Bahl had not been diagnosed with sexual deviancy, prohibiting him from 

possessing material related to it was “utterly lacking in any notice of what behavior 

would violate it.” Id. at 758, 761. By contrast, we found a condition that required 

Bahl not to “‘frequent establishments whose primary business pertains to sexually 

explicit or erotic material’” was clear and did not violate due process protections. 

Id. at 743 (quoting record), 759. 

Similarly, in Nguyen, we rejected a claim that a prohibition on possessing 

“sexually explicit material” was unconstitutionally vague. 191 Wn.2d at 681. We 

 

not before us), Johnson points us to no case where a potentially underinclusive condition of 

community custody has created a constitutional infirmity.
State v. Johnson, No. 98493-0 

9

concluded a person of ordinary intelligence could discern its meaning, especially 

as it was defined in a statute. Id. at 680 (citing Bahl, 164 Wn.2d at 759, and RCW 

9.68.130(2)). We also found a condition requiring the defendant to inform her 

community corrections officer of any “dating relationship” was not 

unconstitutionally vague because “dating relationship” was commonly understood 

in a fairly concrete way. Id. at 681-82. Like the conditions approved in Bahl and 

Nguyen, this provision gives Johnson fair warning of what is forbidden to him—

accessing the Internet without the use of approved filters. 

Johnson’s primary argument is that this condition lacks sufficiently specific 

standards to prevent arbitrary enforcement by his future community custody 

officer. Read in isolation, we might be inclined to agree. But read in a 

commonsense fashion in the context of the judgment and sentence, and related 

documents that will be available to Johnson’s future community corrections 

officer, we find that there are sufficient benchmarks to prevent arbitrary 

enforcement.3

 

We faced a somewhat similar argument in State v. Wallmuller, 194 Wn.2d

234, 449 P.3d 619 (2019)). Wallmuller concerned a community custody provision 

 3 For this reason, we respectfully disagree with the dissent that this condition is vague for lack of 

ascertainable standards. Those standards can be found in the documents that shed light on the 

meaning of the judgment and sentence. See generally In re Pers. Restraint of Coats, 173 Wn.2d 

123, 138-39, 267 P.3d 324 (2011) (courts may consult documents that illuminate errors on the 

face of a judgment and sentence (citing In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 866 

n.2, 50 P.3d 618 (2002))). We are aware of no constitutional or statutory rule that would confine 
State v. Johnson, No. 98493-0 

10

that provided, “‘The defendant shall not loiter in nor frequent places where 

children congregate such as parks, video arcades, campgrounds, and shopping 

malls.’” 194 Wn.2d at 237 (quoting record). Wallmuller challenged this condition 

as inherently vague. Id. at 236. It was one of three conditions that related to 

children. Of the other two, one restricted his contact with minor children except 

for situations where another adult aware of his conviction is present (among other 

requirements) and the other barred him from participating in youth programs. Id.

at 237 (quoting record). We concluded that when read in context of the illustrative 

list and the other conditions of community custody, the condition was not vague 

and did not invite arbitrary enforcement because “an ordinary person can 

understand the scope of the prohibited conduct.” Id. at 245.

Similarly, in this case, we find that any danger of arbitrary enforcement is 

constrained by other documents related to Johnson’s convictions. Most 

specifically, the crimes themselves and the statement of probable cause provide 

sufficient direction to prevent arbitrary enforcement. The statement of probable 

cause contains a detailed recitation of the facts that led up to Johnson’s arrest, 

including the role Johnson’s Internet use played. When read in conjunction with 

this condition of community custody, these documents provide meaningful 

 

the community custody officer to the four corners of the judgment. While as a practical matter, 

in past eras, that might be all the officer has access to, in these days of digital court records, no 

such limitations should exist. 
State v. Johnson, No. 98493-0 

11

benchmarks to restrict arbitrary enforcement. Fairly read in the context of 

Johnson’s crimes, he should not be allowed to use the Internet to solicit 

commercial sex or sex with children. An appropriate filter should be selected with 

this in mind. 

The trial judge made an admirable attempt to draw a narrow condition. We 

conclude he succeeded. When read in the light of Johnson’s convictions and the 

facts that underlie them, there are sufficient relevant benchmarks to prevent 

arbitrary enforcement. 

CONCLUSION

We conclude that the limitation on Johnson’s future Internet use is neither 

overbroad or vague. Accordingly, we affirm. 
State v. Johnson, No. 98493-0 

12

 ____________________________ 

WE CONCUR: 

_____________________________ ____________________________ 

_____________________________ ____________________________ 

_____________________________ ____________________________ 

_____________________________ ____________________________ 
State v. Johnson (Christopher R.) 

No. 98493-0 

MADSEN, J. (dissenting)—The majority holds that the community custody 

condition precluding Christopher Johnson from using or accessing the World Wide Web 

without a community-custody-officer-approved filter is sufficiently narrow and is not 

overbroad or vague. Majority at 7, 11. Because the condition does not restrict Johnson 

from accessing particular social media websites and requires approved Internet filters, the 

majority reasons that the condition is not overbroad. But, as written, the challenged 

condition makes filters—unspecified and approved at the discretion of a community 

corrections officer—a prerequisite to any Web access. Indeed, the majority admits that 

“requiring Johnson to use an overzealous filter might violate the First Amendment [to the 

United States Constitution]” yet relegates such concern as a question of “appropriate 

enforcement.” Id. at 7. 

Of course, the point of a vagueness and overbreadth challenge is to protect against 

arbitrary enforcement based on the lack of ascertainable standards for enforcement. E.g., 

State v. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008). The majority’s own 

reasoning undermines its conclusion that this condition is not overbroad when it 
No. 98493-0 

Madsen, J., dissenting 

2 

encourages “Johnson’s future community custody officer to have a meaningful 

conversation with Johnson about his appropriate Internet use and choose filters that will 

accommodate his legitimate needs.” Majority at 6. Surely the constitution requires more 

than a “meaningful conversation” between two unequal participants in order to protect 

against the overbroad restriction on the First Amendment rights to which Johnson is 

entitled. 

For the reasons discussed below, I would reverse and remand this case to the trial 

court to specify the type of filters appropriate for Johnson’s Web use rather than leaving 

it to the discretion of a community custody officer. Accordingly, I dissent. 

Analysis 

Freedom of speech is an essential right every American citizen enjoys. U.S.

CONST. amend. I. Such a right can be infringed on only by a limitation that is narrowly 

tailored to serve a significant government interest. E.g., Packingham v. North Carolina, 

___ U.S. ___, 137 S. Ct. 1730, 1736, 198 L. Ed. 2d 273 (2017); Bahl, 164 Wn.2d at 757-

58. However, a defendant’s First Amendment right to free speech may be restricted if

reasonably necessary to accomplish the essential needs of the state and public order, and 

is sensitively imposed. Bahl, 164 Wn.2d at 757; State v. Riley, 121 Wn.2d 22, 37, 846 

P.2d 1365 (1993) (citing United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir.

1975)). Here, Johnson challenges the community custody condition prohibiting him from 

accessing the Web without authorization from his community custody officer as both 

unconstitutionally vague and overbroad. 
No. 98493-0 

Madsen, J., dissenting 

3 

1. Vagueness

A condition of community custody is unconstitutionally vague if it (1) fails to give 

fair warning of what is forbidden or (2) fails to give ascertainable standards that will 

prevent arbitrary enforcement. Bahl, 164 Wn.2d at 752-53 (citing City of Spokane v. 

Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)). “If ‘persons of ordinary 

intelligence can understand what the [law] proscribes, notwithstanding some possible 

areas of disagreement, the [law] is sufficiently definite.’” Id. at 754 (alterations in 

original) (quoting Douglass, 115 Wn.2d at 179). Where community custody conditions 

prohibit material protected by the First Amendment, stricter standards of definiteness are 

required. State v. Hai Minh Nguyen, 191 Wn.2d 671, 679, 425 P.3d 847 (2018) (citing 

Bahl, 164 Wn.2d at 753). 

As to the first prong of the vagueness test, I agree that Johnson’s condition is not 

vague because it clearly bans any access to the World Wide Web without authorization 

from Johnson’s community custody officer. It is the second prong of the vagueness 

inquiry that, in my view, renders this condition vague: the condition does not protect 

against arbitrary enforcement because it does not provide ascertainable standards for 

enforcement. See Bahl, 164 Wn.2d at 752-53. Indeed, the majority essentially directs a 

future custody officer to be reasonable and advises Johnson to speak with that officer so 

that filters selected for Johnson’s Web use will not violate his First Amendment rights. 

See majority at 6. Such advice is only necessary because there are no ascertainable 

standards for enforcement. 
No. 98493-0

Madsen, J., dissenting

4

A condition of release may be rendered vague when it vests too much discretion in 

community corrections officers to engage in arbitrary enforcement. Bahl, 164 Wn.2d at 

753. In Bahl, this court stated that a community custody officer who “direct[s] what falls 

within the condition only makes the vagueness problem more apparent, since it virtually 

acknowledges that on its face it does not provide ascertainable standards for 

enforcement.” Id. at 758. Similarly, we should hold that placing the criteria for 

enforcement of Johnson’s Web use in the hands of a future custody officer renders this 

condition vague.

I am also unconvinced by the majority’s reliance on Johnson’s crimes themselves 

and statement of probable cause. Majority at 10. The statement of probable cause recites 

the facts that led to Johnson’s arrest, including the role Johnson’s Internet use played. Id.

Combined with the challenged community custody condition, the majority holds that 

these documents provide “meaningful benchmarks to restrict arbitrary enforcement.” Id. 

at 10-11. But reviewing courts do not look to all the surrounding documents to determine 

whether a community condition is unconstitutionally vague. Rather, courts examine the

language of the condition itself. E.g., Bahl, 164 Wn.2d at 754 (considering the plain 

meaning of terms in a community custody provision). This is so because the vagueness 

doctrine mandates that the State provide citizens with fair warning of proscribed conduct. 

See State v. Padilla, 190 Wn.2d 672, 681, 416 P.3d 712 (2018). Defendants are not 

required to guess what behavior is prohibited. See Douglass, 115 Wn.2d at 179 (noting 

that a criminal provision is “‘unconstitutional when it forbids conduct in terms so vague 
No. 98493-0

Madsen, J., dissenting

5

that persons of common intelligence must guess at its meaning and differ as to its 

application’” (quoting Burien Bark Supply v. King County, 106 Wn.2d 868, 871, 725 

P.2d 994 (1986))). 

To determine whether citizens have received fair warning of prohibited conduct, 

Washington courts have consulted statutory and dictionary definitions of terms within a 

custody provision. See, e.g., Bahl, 164 Wn.2d at 759; Nguyen, 191 Wn.2d at 680-81. 

Courts have consulted surrounding documents when determining whether a condition is 

crime related. See RCW 9.94A.030(10) (defining “crime-related prohibition” as a court 

order prohibiting conduct that “directly relates to the circumstances of the crime for 

which the offender has been convicted”); State v. Jones, 118 Wn. App. 199, 207-08, 76 

P.3d 258 (2003) (striking a custody provision banning consumption of alcohol because 

no evidence showed that alcohol contributed to a defendant’s offenses and was thus not 

crime related).1

 However, construing the language of a challenged community custody 

condition pursuant to a vagueness challenge requires scrutinizing the language itself first 

and foremost. Courts may look to the context in order to determine what the provision 

means, Bahl, 164 Wn.2d at 754, but in this case the provision is clear—Johnson cannot 

know what behavior is prohibited until his community custody officer tells him so. 

 1 See also State v. Wallmuller, 2015 WL 7259587, at *3 (reviewing declaration of probable cause 

to determine whether a custody provision was crime related); State v. Haskins, 2019 WL 

6318034, at *2 (same).
No. 98493-0 

Madsen, J., dissenting 

6 

Despite upholding the challenged provision and affirming that Johnson will not be 

required to guess what behavior is prohibited, the majority cannot remain consistent 

because it exhorts the community custody officer to select “appropriate” filters for 

Johnson’s Web access—implicitly recognizing that Johnson will have to guess at the 

prohibited behavior. The First Amendment offers poor protection indeed if an 

individual’s rights depend on the goodwill of probation officers. 

2. Overbreadth

A condition is unconstitutionally overbroad if it encompasses conduct that is not 

crime related. See State v. Lee, 12 Wn. App. 2d 378, 401, 460 P.3d 701 (2020). Here, 

the total ban on Johnson’s access to the Web, subject to exceptions yet to be determined, 

also renders the condition overbroad. 

The United States Supreme Court opined on the unique interaction between the 

Internet and free speech in Packingham. There, the Court reviewed a state law 

prohibiting a registered sex offender from accessing “‘a commercial social networking 

Web site where the sex offender knows that the site permits minor children to become 

members or to create or maintain personal Web pages.’” Packingham, 137 S. Ct. at 1733 

(quoting N.C. GEN. STAT. ANN. §§ 14-202.5(a), (e) (2009)). The Court held that the 

provision violated the First Amendment even though the law exempted websites that 

provided only e-mail, chat, or instant messenger services, as well as websites operating 

primarily for commercial transactions. Id. at 1734. The Court explained, “A 

fundamental principle of the First Amendment is that all persons have access to places 
No. 98493-0 

Madsen, J., dissenting 

7 

where they can speak and listen, and then, after reflection, speak and listen once more.” 

Id. at 1735. The “‘vast democratic forums of the Internet,’” such as social networking 

sites, allow users to debate religion and politics, search for employment, and petition the 

government directly via elected representatives. Id. (quoting Reno v. Am. Civil Liberties 

Union, 521 U.S. 844, 868, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997)). Thus, the Court 

warned, judges “must exercise extreme caution before suggesting that the First 

Amendment provides scant protection for access to vast networks” online. Id. at 1736. 

The majority here emphasizes the nature of Johnson’s crimes and says Johnson 

should not be allowed to use the Internet to solicit commercial sex or sex with children. 

No one can disagree. But, as the Packingham Court warned when it recognized that child 

sexual abuse is a most serious crime and that states may pass laws to protect children, 

such laws “must not ‘burden substantially more speech than is necessary’” to further that 

legitimate goal. Id. (quoting McCullen v. Coakley, 573 U.S. 464, 486, 134 S. Ct. 2518, 

189 L. Ed. 2d 502 (2014)). The same is true here. Just as the Court held that the North 

Carolina law was unconstitutionally overbroad because it barred access to “the principal 

sources for knowing current events, checking ads for employment, speaking and listening 

in the modern public square, and otherwise exploring the vast realms of human thought 

and knowledge,” this court should hold that the complete ban on Johnson’s access to the 

Web, with undefined exceptions, is also unconstitutional. Id. at 1737. “[T]he State may 

not enact this complete bar to the exercise of First Amendment rights on websites integral 

to the fabric of our modern society and culture.” Id. at 1738. 
No. 98493-0

Madsen, J., dissenting

8

The majority rejects Johnson’s argument that Packingham applies because the 

community custody condition here is significantly narrower than the unconstitutional

statute at issue in that case. Majority at 7. But there is no way of knowing whether 

Johnson’s community custody condition is narrower than the statute in Packingham

because the condition here is a complete ban on Web use subject only to the permission 

of a corrections officer, which may be granted under unspecified conditions. 

The Third Circuit Court of Appeals recently applied Packingham to invalidate a 

condition of release. There, as in this case, the trial court banned the defendant from 

using the Internet without his probation officer’s approval and required the defendant to 

allow the installation of monitoring and filtering software on his computer. United States 

v. Holena, 906 F.3d 288, 290 (3d Cir. 2018). The Court of Appeals reversed, stating,

“The goal of restricting Holena’s internet use is to keep him from preying on children. 

The District Court must tailor its restriction to that end.” Id. at 293. Borrowing from the 

reasoning in Packingham, the court ruled the trial judge “may not prevent Holena from 

doing everyday tasks that have migrated to the internet, like shopping, or searching for 

jobs or housing. The same is true for his use of websites conveying essential 

information, like news, maps, traffic, or weather.” Id. at 294. “Under Packingham, 

blanket internet restrictions will rarely be tailored enough to pass constitutional muster.” 

Id. at 295. “Their ‘wide sweep precludes access to a large number of websites that are 

most unlikely to facilitate the commission of a sex crime against a child.’” Id. (quoting 

Packingham, 137 S. Ct. at 1741 (Alito, J., concurring)). 
No. 98493-0 

Madsen, J., dissenting 

9 

Important to the present case, the Third Circuit noted that although the condition at 

issue permitted Internet use with the probation officer’s prior approval, the condition 

“gave the probation office no guidance on the sorts of internet use that it should 

approve.” Id. at 293. Similarly here, the blanket prohibition on Web use without prior 

authorization of the community custody officer is unconstitutional. 

3. State v. Forler

The Court of Appeals in this case acknowledged that Division One recently came 

to a different conclusion regarding a similar community custody condition in State v. 

Forler, No. 79079-0-I, slip op. at 27-28 (Wash. Ct. App. June 10, 2019) (unpublished), 

http://www.courts.wa.gov/opinions/pdf/790790.pdf, review denied, 194 Wn.2d 1011 

(2019). In Forler, the defendant challenged a condition that precluded “‘internet use 

unless authorized by treatment provider and Community Custody Officer.’” Id. at 25. 

Forler was convicted of attempted rape of a child by soliciting an undercover officer 

through a Craigslist forum. The Court of Appeals concluded that the blanket restriction 

of “no internet use” went beyond tailoring Forler’s use to a crime-related prohibition. 

Echoing Packingham, the court noted: 

Today, internet use is ubiquitous, allowing people to easily accomplish 

many daily tasks and functions, including but not limited to: finding a job 

or housing, managing banking and investment accounts, paying bills, 

receiving directions, listening to music, reading the news, and connecting 

with friends and family. The list provided is only a short list of what can be 

accomplished using the internet. But none relate to Forler’s conviction. 

Furthermore, many devices such as televisions are “smart devices” and 

require an internet connection to access their “smart” features. Under the 
No. 98493-0 

Madsen, J., dissenting 

10 

broad community custody condition here, Forler would be in violation if he 

used a “smart device” that was connected to the internet. 

Id. at 27-28. 

The court correctly concluded that the condition did not protect against arbitrary 

enforcement “because it does not provide ascertainable standards for enforcement” and 

fails because it is unconstitutionally overbroad. Id. at 27. 

Contrary to the majority’s assertion, the provision here is nearly identical to the 

community custody provision in Forler, which stated, “No Internet use unless authorized 

by treatment provider and Community Custody Officer.” Id. at 25. The community 

custody provision in this case stated Johnson shall “not use or access the World Wide 

Web, unless specifically authorized by [his community custody officer] through approved 

filters.” Clerk’s Papers at 99; see also majority at 3. Both provisions have the same 

overbroad effect.

This court should follow its own precedent, that of the United States Supreme 

Court, and the guidance from the Third Circuit to hold that a blanket ban on access to the 

World Wide Web, except as permitted by a community custody officer’s discretion, is an 

unconstitutional infringement on the First Amendment that far exceeds any crime-related 

justification. 

I respectfully dissent. 
No. 98493-0 

Madsen, J., dissenting

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