RENDERED: DECEMBER 17, 2020

TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0248-DG

COMMONWEALTH OF KENTUCKY APPELLANT 

V. 

ON REVIEW FROM COURT OF APPEALS

NO. 2018-CA-0061

KENTON CIRCUIT COURT NO. 15-CR-01000 

KEITH JENNINGS APPELLEE 

OPINION OF THE COURT BY JUSTICE NICKELL

REVERSING

The Kentucky Court of Appeals vacated and remanded the Kenton 

Circuit Court’s denial of Keith Jennings’ motion to modify the terms of his 

probation to remove a restriction prohibiting him from having any access to the 

internet during his probationary period. Relying on the recent decision of the 

United States Supreme Court in Packingham v. North Carolina, 137 S.Ct. 1730 

(2017), which invalidated—on First Amendment grounds—a statute prohibiting 

registered sex offenders from accessing certain commercial social media 

websites, the Court of Appeals concluded the complete ban on internet access 

under the particular facts was impermissibly vague and overly burdensome on 

Jennings’ free speech rights. We granted the Commonwealth’s motion for 
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discretionary review. Having reviewed the record and arguments of the parties, 

we reverse the Court of Appeals due to lack of a timely objection by Jennings.

Jennings was required to register as a sex offender after pleading guilty 

in 2004 in Jefferson County, Kentucky, to a felony charge of distributing 

matter portraying a sexual performance by a minor and a misdemeanor charge 

of attempting to use a minor in a sexual performance. He was indicted in 2015 

by a Kenton County grand jury for failing to comply with sex offender

registration requirements. Jennings entered a guilty plea to a felony count of 

failing to comply with the Kentucky Sex Offender Registration Act (KSORA) and 

being a persistent felony offender in the first degree. His seven-and-a-half-year 

sentence was probated for a period of five years. Relevant to this appeal, as 

conditions of probation, Jennings was to commit no further offenses and have 

“no access to the internet.” Approximately one month later, the trial court 

granted Jennings’ motion to modify two terms of his probation related to the 

length of his registration period and contact with minor children.

Less than four months later, Jennings was charged in Jefferson County 

for failing to comply with KSORA’s restrictions on accessing online social media 

sites. The Commonwealth’s Attorney in Kenton County sought to revoke 

Jennings’ probation based on the new criminal charge as well as his violation 

of the express probation condition that he not access the internet. While the 

revocation proceedings were pending, the United States Supreme Court 

rendered Packingham,

1 leading Jefferson County prosecutors to drop the 

 

1 In Doe v. Commonwealth, ex rel. Tilley, 283 F.Supp.3d 608 (E.D.Ky. 2017), a 

federal court enjoined the Commonwealth from enforcing then-existing statutory 
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charges pending against Jennings in that county. Following a revocation 

hearing at which the Commonwealth chose to proceed only on the basis of 

Jennings having accessed the internet, the trial court declined to revoke 

Jennings’ probation but did find he had violated the terms thereof and that 

those terms did not violate Jennings’ First Amendment rights. The trial court 

sanctioned Jennings with a penalty of four months’ incarceration—

representing the time served while he was in jail awaiting the revocation 

proceedings.

Jennings appealed to the Court of Appeals which vacated and remanded 

the matter for further proceedings. The Court of Appeals undertook an indepth analysis of KSORA’s provisions related to restrictions on internet use 

and how they have been amended in the wake of Packingham and Tilley. The 

Court concluded the issue relating to restrictions for those defendants who had 

served their sentences and were no longer under supervision was settled by 

Packingham, but remained an open question for those, like Jennings, who were 

still under active supervision. Noting a variation among jurisdictions regarding 

permissibility of internet restrictions for sex offenders who were on active 

supervision, the Court of Appeals then looked at Jennings’ restrictions to 

determine whether they passed constitutional muster.

 

provisions prohibiting internet usage by registered sex offenders upon concluding they 

were substantially similar to the statutes held unconstitutional in Packingham. In 

response, the General Assembly made significant changes to the statute during its 

next session.
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After setting forth the appropriate standards, the Court of Appeals 

concluded the trial court erred in imposing a complete ban on internet access 

because such a restriction was not narrowly tailored, burdened more First 

Amendment rights than necessary to further the government’s interests, and 

did not increase public safety. Further, the Court found Jennings’ original 

crime did not appear to involve the internet, nor did his current offense of 

KSORA noncompliance. Finally, the Court of Appeals stated the restriction 

banned “access” to the internet rather than “use” but the trial court did not 

indicate whether Jennings would be permitted to visit any location that had 

internet-capable devices, which would include private homes, places of 

employment, public libraries, hotels, and many retail businesses, or whether 

he could own a device which had the ability to access the internet even if he 

did not use it for that purpose. As such, the restriction was deemed 

unconstitutionally vague. While declining to establish a bright-line rule, the 

Court of Appeals noted complete internet bans may be appropriate in some 

cases but held Jennings’ case did not qualify for such draconian restrictions.

We agree with the Court of Appeals’ position that complete bans on 

internet use may, in certain extraordinary cases, pass constitutional muster. 

However, limited, focused, and rationally-related restrictions are more typically 

required. Though once a luxury, the modern internet is a practical necessity 

for many aspects of life including banking, shopping, education, job searches, 

obtaining unemployment benefits, keeping abreast of current events, and even 

finding a telephone number. Because the internet’s integration with all aspects 

of modern society and business has become so pervasive, the United States 
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Supreme Court has characterized the internet as “the modern public square” 

while acknowledging it is “integral to the fabric of our modern society and 

culture.” Packingham, 137 S.Ct. at 1737-38. Thus, trial courts—although 

vested with broad discretion in whether to grant probation and on what 

terms—should proceed cautiously and with specificity when choosing to limit 

access to such a significant resource. Complete bans should be exceedingly 

rare.

However, in the present appeal, we need not reach the question of 

whether the complete ban on Jennings’ internet access was appropriate 

because he failed to timely contest the allegedly offending probation restriction. 

At sentencing, the trial court orally ruled it would include the total internet ban 

as a condition of Jennings’ probation and did so in its formal written 

sentencing order. Jennings did not appeal the probation order, did not object 

to inclusion of the restriction prohibiting internet access, and did not otherwise 

seek to modify that condition although he did challenge other terms of the 

probationary order. It was not until after he had violated the internet 

restriction that he raised any challenge.

“In this Commonwealth, ‘probation is a privilege rather than a right. One 

may retain his status as a probationer only as long as the trial court is satisfied 

that he has not violated the terms or conditions of the probation.’” Sullivan v. 

Commonwealth, 476 S.W.3d 260, 263 (Ky. App. 2015) (quoting Barker v. 

Commonwealth, 379 S.W.3d 116, 122 (Ky. 2012) (internal quotations and 

citation omitted)). “[A]lthough probation of a sentence may be a benefit 

conferred upon a convicted criminal for an invalid reason, the order of 
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probation is separable from the conviction itself and the judgment entered 

thereon. The fact that the probationary order is void does not render the 

conviction and the judgment void.” Weigand v. Commonwealth, 397 S.W.2d 

780, 781 (Ky. 1965) (citations omitted). A probationer is required to challenge 

the offending provision at the time it is imposed. Butler v. Commonwealth, 304 

S.W.3d 78, 80 (Ky. App. 2010) (citing Weigand, 397 S.W.2d at 781).

Here, Jennings does not challenge his conviction but merely contends 

the trial court’s total ban on internet access was improper. However, by

accepting the probation, Jennings evaded serving a lengthy jail sentence, only 

to face sanctions when he promptly violated its terms. Jennings’ failure to 

challenge the probation restriction prohibiting all access to the internet at the 

time it was imposed is fatal to his current request for relief. Id. The trial 

court’s imposition of a four-month jail sentence as a sanction for Jennings’ 

intentional violation of his probation restriction did not violate his 

constitutional rights. The Court of Appeals should not have entertained the 

untimely challenge, and its decision on the merits was therefore in error.

For the foregoing reasons, the decision of the Court of Appeals is 

reversed.

All sitting. All concur.
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COUNSEL FOR APPELLANT:

Daniel J. Cameron

Attorney General of Kentucky

Stephen Chad Meredith

James Coleman Shackleford

Assistant Attorney General

COUNSEL FOR APPELLEE:

Shannon Renee Dupree

Assistant Public Advocate