J.B. v. New Jersey State Parole Board

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5435-10T2
A-1459-11T2
A-2138-11T3
A-2448-11T2
A-3256-11T2

J.B.,
APPROVED FOR PUBLICATION
Appellant,
November 26, 2013
v.
APPELLATE DIVISION
NEW JERSEY STATE PAROLE BOARD,

Respondent.
________________________________

L.A.,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.
_______________________________

B.M.,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.
_______________________________
L.A.,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.
_______________________________

W.M.,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.
________________________________

Argued October 29, 2013 - Decided November 26, 2013

Before Judges Sabatino, Hayden, and
Rothstadt.

On appeal from the New Jersey State Parole
Board.

Joseph S. Murphy argued the cause for
appellants.

Christopher C. Josephson, Deputy Attorney
General, argued the cause for respondent
(John J. Hoffman, Acting Attorney General,
attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel and on the
briefs; Lisa A. Puglisi, Assistant Attorney
General, of counsel in A-2448-11T2; Mr.
Josephson, on the briefs).

The opinion of the court was delivered by

SABATINO, J.A.D.

2 A-1459-11T2
 Appellants J.B., L.A., B.M., and W.M. are individuals who

have been convicted of sexual offenses, have completed their

respective prison terms, and are now being monitored by

respondent New Jersey State Parole Board (the "Parole Board") as

offenders who are subject to either parole supervision for life

("PSL") or its statutory predecessor, community supervision for

life ("CSL"). N.J.S.A. 2C:43-6.4. Represented by the same

attorney, appellants challenge the constitutionality of certain

terms of supervision the Parole Board has imposed upon them.

Similar conditions have been imposed on other offenders subject

to CSL or PSL, although appellants have not filed a class

action.

The terms of supervision mainly being challenged in these

related appeals1 are (1) the Parole Board's restrictions on

appellants' access to social media or other comparable web sites

on the Internet; and (2) the Parole Board's authority to compel

them to submit to periodic polygraph examinations. One of the

appellants, L.A., also contests the Parole Board's imposition

upon him of a Halloween curfew and an electronic monitoring

condition.

1
The five appeals (two of which were filed by L.A.) were
calendared back-to-back, and we consolidate them for purposes of
this opinion.

3 A-1459-11T2
 For the reasons that follow, we reject appellants' facial

challenges to the Internet access restrictions, subject to their

right to bring future "as-applied" challenges should they avail

themselves of the Parole Board's procedures for requesting

specific permission for more expanded Internet access and are

then denied such permission.

We do not decide at this time the merits of appellants'

constitutional attack upon the polygraph requirements. Instead,

we refer that subject matter to the trial court for supplemental

proceedings, pursuant to Rule 2:5-5(b), for the development of

an appropriate record, including scientific or other expert

proofs, and for fact-finding. Such proofs and fact-finding

shall focus upon the alleged therapeutic, rehabilitative, and

risk management benefits of polygraph testing when it is

conducted within the specific context of post-release oversight

of sex offenders.

Lastly, we uphold the Parole Board's actions concerning the

Halloween curfew, and dismiss as moot the claims concerning

L.A.'s electronic monitoring, which has ended.

I.

The circumstances of each appellant are substantially the

same. Each has been convicted of a sexual offense, has served

his sentence, and is now under supervision by the Parole Board.

4 A-1459-11T2
Each objected to certain restrictions the Parole Board imposed

upon him, arguing that those restrictions violated his

constitutional rights. And, in each instance, the Parole Board

has denied the offender's constitutional claims in a written

final agency decision without conducting a plenary evidentiary

hearing.

B.M.

B.M. pled guilty in March 1988 to one count of second-

degree sexual assault upon his daughter, N.J.S.A. 2C:14-2b. He

was sentenced to a four-year prison term and ordered to comply

with post-release registration and notification requirements

pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -6 and N.J.S.A.

2C:7-6 to -11. His sentence was amended to include a CSL term

effective upon his release, pursuant to the Violent Predator

Incapacitation Act of 1994, N.J.S.A. 2C:43-6.4.

B.M. was released from prison in March 2001. At that time,

he received a notice from the Parole Board enumerating the

specific conditions being imposed upon him as a CSL parolee.

B.M. signed an acknowledgement of those conditions. At some

point following his release, B.M. obtained employment as an

environmental consultant. His work has frequently involved

travel outside of New Jersey.

5 A-1459-11T2
 In July 2009, the Parole Board asked B.M. to submit to a

polygraph examination. The request was based on the Parole

Board's asserted need to monitor B.M.'s compliance with the

conditions of his CSL supervision while on his out-of-state

trips. B.M. objected to the polygraph testing, claiming that it

violated his constitutional rights. The Parole Board advised

B.M. that he would no longer be allowed to travel out-of-state

if he refused to take the polygraph, despite the fact that the

Parole Board had previously approved his out-of-state travel

since 2003. The Parole Board also advised B.M. that he would

not be allowed to use a computer to access social networking

sites without the approval of a parole supervisor.

B.M. filed an administrative appeal of the polygraph and

Internet restrictions, which the Parole Board denied in November

2009. He then appealed that ruling to this court. While that

initial appeal was pending, B.M. applied for an emergent stay of

the restrictions. After the Supreme Court issued an order

directing this court to consider the merits of that emergent

application, we granted a stay of the Parole Board's

restrictions on B.M.'s interstate travel, pending the appeal.

On June 30, 2010, we issued an unpublished opinion in

B.M.'s first appeal, directing the Parole Board to

administratively adopt regulations that more fully addressed,

6 A-1459-11T2
after public notice and comment, the standards, conditions, and

procedures governing the Parole Board's use of polygraph testing

and Internet access restrictions. B.M. v. N.J. State Parole

Bd., No. A-2599-09 (App. Div. June 30, 2010); see also

Metromedia, Inc. v. Dir., Div. of Taxation, 97 N.J. 313 (1984)

(requiring administrative rulemaking for the promulgation of an

agency's general standards and procedures). As part of that

decision, we directed the Parole Board to continue to allow B.M.

to travel out-of-state for business purposes unless "independent

grounds" to restrict such travel arose. B.M. v. N.J. State

Parole Bd., supra, slip op. at 7. Our opinion did not reach the

merits of B.M.'s constitutional challenges, in anticipation that

the forthcoming regulations might bear on these constitutional

arguments. Id. at 6-8.

Subsequently, as discussed in Parts II and III of this

opinion, infra, the Parole Board adopted regulations detailing

the Internet usage restrictions for PSL and CSL offenders, as

well as supplemental regulations about the polygraph testing of

such individuals. B.M. then filed his present second appeal (A-

2138-11) reiterating his constitutional objections to both the

polygraph testing and Internet restrictions.

7 A-1459-11T2
 J.B.

In April 2002, J.B. pled guilty to one count of endangering

the welfare of a child, N.J.S.A. 2C:24-4a, his stepson. He was

sentenced to a three-year custodial term and ordered to comply

with Megan's Law, N.J.S.A. 2C:7-1 to -23. J.B. was also ordered

to comply with CSL monitoring upon his release, N.J.S.A. 2C:43-

6.4.

J.B. was released after completing his sentence,2 and in

February 2008, the Parole Board notified him of the polygraph

condition.

Thereafter, in September 2010, the Parole Board required

J.B. to submit to a polygraph examination to monitor his

compliance with CSL conditions. Like B.M., J.B. objected to the

polygraph testing, contending that it violated his

constitutional protections. He filed an administrative appeal,

which the Parole Board rejected in a May 25, 2011 final agency

decision. J.B. then filed this present appeal (A-5435-10).

W.M.

W.M. pled guilty in April 1996 to five counts of second-

degree aggravated sexual assault, N.J.S.A. 2C:14-2b, for

molesting five young female music students in their homes. He

was sentenced to concurrent five-year terms at the Adult

2
The record does not indicate J.B.'s release date.

8 A-1459-11T2
Diagnostic Center at Avenel, and was required to comply with

certain provisions in Megan's Law. W.M. was released from

custody in August 1999. His judgment of conviction was amended

in 2000 to include a CSL provision.

In January 2008, the Parole Board notified W.M. that he was

prohibited from accessing social networking websites as a

condition of his supervision. Additionally, in October 2008,

W.M. was advised that he was subject to polygraph testing. In

September 2011, W.M. was referred for a polygraph examination,

which he declined to take.

Invoking similar constitutional claims as the other

appellants, W.M. pursued an administrative appeal contesting the

polygraph and Internet access restrictions. On January 25,

2012, the Parole Board denied W.M.'s request for relief. He

then filed his present appeal (A-3256-11). In June 2012, the

Supreme Court granted W.M. a stay of the polygraph examination

and Internet restriction pending appeal.

L.A.

In May 2007, L.A. pled guilty to second-degree attempted

sexual assault of a minor, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-

2c(4), after having sexually explicit online conversations with

an undercover police officer posing as a boy and then later

9 A-1459-11T2
attempting to meet with the putative youth at a mall. At the

time of this offense in 2005, L.A. was in his sixties.

L.A. was sentenced to a three-year prison term. He was

also made to comply with PSL conditions, N.J.A.C. 10A:71-6.12,3

as well as other Megan's Law requirements. L.A. thereafter

completed his prison sentence and was released.4

In September 2011, L.A. was told by his parole officer that

he had to take a polygraph examination. L.A. objected to the

testing on the grounds of improper notice and constitutional

defects. He filed an administrative challenge to the testing,

which the Parole Board rejected in an October 26, 2011 final

agency decision. L.A. then appealed that determination to this

court (A-1459-11).

In his second appeal that is also before us (A-2448-11),

L.A. challenges the Parole Board's imposition of both a

Halloween curfew and an electronic monitoring condition. The

Halloween curfew, which the Parole Board imposed on L.A. in

3
The CSL statute was amended in 2003, effective January 14,
2004, to change "community supervision for life" (i.e., CSL) to
"parole supervision for life" (i.e., PSL). G.H. v. Twp. of
Galloway, 401 N.J. Super. 392, 401 n.4 (App. Div. 2008), aff'd,
199 N.J. 135 (2009); see also L. 2003, c. 267, § 1. The
revisions did not change the substance of the law. Cannel, New
Jersey Criminal Code Annotated, comment on N.J.S.A. 2C:43-6.4
(2013).
4
The record does not indicate L.A.'s release date.

10 A-1459-11T2
October 2011, required that he remain in his home from 2:00 p.m.

to midnight on that holiday. L.A. requested permission from the

Parole Board to attend two business meetings on Halloween, but

his parole officer only granted him permission to attend the day

meeting and not the evening meeting. Nevertheless, in violation

of the curfew, L.A. went to a shopping mall where he was

observed by his parole officer and then sent home.

As a sanction for L.A.'s non-compliance with the Halloween

curfew, the Parole Board required him to participate in

electronic monitoring. The electronic monitoring included a

curfew of twenty hours per day for up to 180 days.

L.A. contested both the Halloween curfew and the electronic

monitoring conditions before the Parole Board. In a November

30, 2011 final agency decision, the Parole Board upheld both

conditions. L.A. has since completed the electronic monitoring.

Nevertheless, he continues to press on appeal his challenges to

the Halloween curfew and the electronic monitoring requirement.

II.

We first consider B.M.'s and W.M.'s arguments that the

Parole Board had violated, and continues to violate, their

constitutional rights by denying them access to social media

websites on the Internet. In particular, appellants contend

that these Internet restrictions infringe their rights of free

11 A-1459-11T2
speech and association under the First Amendment of the United

States Constitution, their rights under the Due Process Clause,

and their corresponding rights under the New Jersey

Constitution. Appellants further claim that the Internet

restrictions were imposed without statutory authorization and

compliance with the Administrative Procedure Act ("APA"),

N.J.S.A. 52:14B-4. For the reasons that follow, we reject these

facial challenges.

A.

Appellants' constitutional claims must be examined in the

context of their distinctive status as sex offenders who have

been released into the community after serving their custodial

sentences, and who are now under the Parole Board's continued

supervision through CSL or PSL.

"Community supervision for life was 'designed to protect

the public from recidivism by defendants convicted of serious

sexual offenses.'" Jamgochian v. N.J. State Parole Bd., 196

N.J. 222, 237-38 (2008) (quoting Sanchez v. N.J. State Parole

Bd., 368 N.J. Super. 181, 184 (App. Div.), certif. granted, 182

N.J. 140 (2004), appeal dismissed, 187 N.J. 487 (2006)). As the

Supreme Court has recognized, unfortunately, "the relative

recidivism rate of sex offenders is high compared to other

offenders; treatment success of sex offenders exhibiting

12 A-1459-11T2
repetitive and compulsive characteristics is low; and the time

span between the initial offense and re-offense can be long."

Doe v. Poritz, 142 N.J. 1, 15 n.1 (1995).

Given these special characteristics of sex offenders, the

Legislature established CSL in 1994 as part of the Violent

Predator Incapacitation Act, N.J.S.A. 2C:43-6.4. The statute is

one component of a series of laws that are collectively referred

to as Megan's Law, N.J.S.A. 2C:7-1 to -23. See also L. 1994, c.

130. Persons who have been convicted between 1994 and 2004 of

certain sexual offenses enumerated within N.J.S.A. 2C:43-6.4(a)

must serve, in addition to any existing sentence, "a special

sentence" of "community supervision for life," and those

convicted after that time are sentenced to "parole supervision

for life." N.J.S.A. 2C:43-6.4(a); see also L. 2003, c. 267, §

1. This CSL or PSL term follows immediately after the parolee's

release from incarceration, if applicable, and includes

specified conditions by which he or she must abide. N.J.S.A.

2C:43-6.4(b). The stated purpose of these conditions is "to

protect the public and foster rehabilitation." Ibid. Such

offenders are supervised by the Division of Parole of the State

Parole Board "as if on parole" and may be subject to "conditions

appropriate to protect the public and foster rehabilitation."

N.J.S.A. 2C:43-6.4(b); N.J.A.C. 10A:71-6.11.

13 A-1459-11T2
 As the United States Supreme Court has recognized,

convicted persons  whether they have been found guilty of

sexual offenses or other crimes  are generally subject to a

constitutionally-permissible degree of continued governmental

oversight and diminished personal autonomy when they are on

parole or some other form of post-release supervision. "Rather

than being an ad hoc exercise of clemency, parole is an

established variation on imprisonment of convicted criminals."

Morrissey v. Brewer, 408 U.S. 471, 477, 92 S. Ct. 2593, 2598, 33

L. Ed. 2d 484, 492 (1972). "Its purpose is to help individuals

reintegrate into society as constructive individuals as soon as

they are able without being confined for the full term of the

sentence imposed." Ibid. To accomplish this objective,

parolees are typically subjected to "conditions [that] restrict

their activities substantially beyond the ordinary restrictions

imposed by law on an individual citizen." Id. at 478, 92 S. Ct.

at 2598, 33 L. Ed. 2d at 492.

For instance, parolees must commonly "seek permission from

their parole officers before engaging in specified activities,

such as changing employment or living quarters, marrying,

acquiring or operating a motor vehicle, traveling outside the

community, and incurring substantial indebtedness." Ibid.

Parolees must also regularly report to their assigned parole

14 A-1459-11T2
officer. Id. at 478, 92 S. Ct. at 2598-99, 33 L. Ed. 2d at 492.

Subject to procedural fairness and other recognized limitations,

the State has a strong interest in assuring that parolees adhere

to the conditions of their parole. Id. at 480-84, 92 S. Ct. at

2600-02, 33 L. Ed. 2d at 493-97. Where it is advised, the

revocation of parole "deprives an individual, not of the

absolute liberty to which every citizen is entitled, but only of

the conditional liberty [that is] properly dependent on

observance of special parole restrictions." Id. at 480, 92 S.

Ct. at 2600, 33 L. Ed. 2d at 494.

The New Jersey Supreme Court in Jamgochian, supra, 196 N.J.

at 222, extended these general principles of limited liberties

in the parole context to sexual offenders sentenced to post-

release CSL terms. In that case, the Court declared that a

convicted sex offender under CSL could be made subject to

restrictions on his liberty, such as an evening curfew, provided

that the Parole Board afforded him with constitutional due

process protections of notice and an opportunity to object to

the curfew restriction. Ibid. Such a person's special status

as a CSL offender did not entitle him to the "full panoply of

rights" available to a citizen in a criminal trial. Id. at 242.

That said, the Court explained in Jamgochian that such an

individual was nonetheless constitutionally protected from

15 A-1459-11T2
"arbitrary government action." Id. at 241-42. The Court

cautioned that, in this context, due process and procedural

fairness must be applied flexibly, for the Constitution does not

"mandate a regime that will make it impractical to impose a

necessary curfew provision to protect the public or rehabilitate

the offender." Id. at 246. Moreover, "[d]iscretion must be

invested in the Parole Board, which has the agency expertise and

authority to implement a scheme that can address the unique

circumstances of each case." Id. at 250. Even so, on the

record before it, the Court in Jamgochian concluded that the

Parole Board had deprived the appellant of a fair opportunity to

contest both (1) the Parole Board's claim that he engaged in

inappropriate conduct that signaled a prelude to recidivism, and

(2) the Parole Board's rationale underlying its decision to

impose a curfew. The Court prospectively directed that such

procedural safeguards must be afforded in future cases to sex

offenders on CSL. Id. at 250-51.

We also must be mindful of the importance of an

individual's freedom of speech and association under the First

Amendment of the United States Constitution and Article I,

Paragraphs 6 and 18 of the New Jersey Constitution. See Tinker

v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S. Ct.

733, 21 L. Ed. 2d 731 (1969) (delineating First Amendment

16 A-1459-11T2
principles); State v. Schmid, 84 N.J. 535 (1980) (delineating

cognate principles under the State Constitution). We are

particularly mindful that our State Constitution's free speech

provisions have, at times, been interpreted more broadly than

their federal counterparts. See, e.g., N.J. Coalition Against

War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326

(1994); Schmid, supra, 84 N.J. at 535. "[T]he State

Constitution furnishes to individuals the complementary freedoms

of speech and assembly and protects the reasonable exercise of

those rights." Schmid, supra, 84 N.J. at 560. As such, the

State Constitution "serves to thwart inhibitory actions which

unreasonably frustrate, infringe, or obstruct the expressional

and associational rights of individuals." Ibid.

B.

Against this backdrop of competing State and individual

interests, we examine the Internet restrictions that appellants

B.M. and W.M. have challenged in this case.

In 2007, the Legislature amended N.J.S.A. 2C:43-6.4 to add

a provision limiting Internet access for sexual offenders

serving a CSL sentence, effective February 25, 2008. N.J.S.A.

2C:43-6.4(f); see also L. 2007, c. 219. The statute specified

that these conditions could include prohibiting the use of a

computer without prior written approval, requiring the offender

17 A-1459-11T2
to submit to periodic unannounced examinations of his or her

computer, requiring the offender to install a monitoring device

on his or her computer, and requiring the offender to "disclose

all passwords used by the person to access any data,

information, image, program, signal or file." N.J.S.A. 2C:43-

6.4(f)(1) to (5).

In our 2010 unpublished opinion in B.M., supra, we noted

that, in addition to the absence of adequate regulations

governing the Parole Board's administration of polygraph

examinations, the agency also had not adopted regulations

specifically addressing Internet access restrictions. B.M. v.

N.J. State Parole Bd., supra, slip op. at 4-6. Among other

things, we observed that there did not appear to be any general

internal policies or procedures governing those restrictions, or

defining key terms such as "social networking" site. Ibid.

Consequently, on September 29, 2010, the Parole Board

adopted new regulations detailing restrictions it could impose

on an offender's Internet usage. N.J.A.C. 10A:71-6.11(b)(22);

42 N.J.R. 2960(a). It did not receive any public comments when

these new rules were proposed. 42 N.J.R. 2960(a). The new

conditions clearly specified that an offender may be subject to

Internet restrictions "to access any social networking service

or chat room in the offender's home or with any other name for

18 A-1459-11T2
any reason unless expressly authorized by the district parole

supervisor." N.J.A.C. 10A:71-6.11(b)(22).

On January 3, 2012, the Parole Board issued proposals for

further amendments to these conditions, "provid[ing] for a

definition of social networking service, Internet website or

application, chat room and peer-to-peer network." 44 N.J.R.

30(a). In response to that proposal, the Chief Executive

Officer of the New Jersey Association of Mental Health and

Addiction Agencies, Debra L. Wentz, Ph.D., submitted a comment

raising a concern that the proposed restrictions may undesirably

impede an offender's rehabilitation efforts. Her comment

pointed out that "social media has expanded beyond simply

'socializing' and is becoming an important tool for people in

early recovery to network, access emotional support, and gain

access to needed services." 44 N.J.R. 1530(a). The Parole

Board replied that if a treatment provider believed that

accessing social media was conducive to the offender's recovery,

"there already exists a mechanism for the matter to be

reviewed." Ibid. N.J.A.C. 10A:71-6.6(b), it elaborated,

permitted an offender to apply to the Parole Board for a

modification of a condition of supervision. Ibid.

Consequently, on March 28, 2012, the Board adopted the

19 A-1459-11T2
additional proposals on Internet restrictions without

modification.

B.M. and W.M. now challenge these Internet restrictions.

They maintain that the restrictions are overbroad and unduly

deprive them access to information, news, business

opportunities, and other benign avenues of expression on the

Internet. They contend that the Internet has become an

increasingly pervasive and vital part of modern life, and that

this inability to participate in such everyday communications

represents an unconstitutional infringement upon their

liberties. Appellants further contend that the Parole Board's

regulations do not afford them adequate notice and procedural

protections, lest they visit an unauthorized Internet site in

error and potentially risk further sanctions and losses of

liberty. Lastly, they contend that the Internet regulations do

not comport with the procedural standards of the APA.

The Parole Board, in turn, asserts that the Internet

restrictions are reasonable measures to assure that sexual

offenders serving CSL sentences do not engage in inappropriate

interactions with youths or other potential victims, and that,

accordingly, public safety justifies such restrictions. It

further points out that the regulations contain an explicit

process in N.J.A.C. 10A:1-6.11 for an offender serving a PSL or

20 A-1459-11T2
CSL sentence to seek permission from a parole official to gain

access to a particular site for work or other reasonable

purpose. The Parole Board contends that offenders must exhaust

such administrative remedies before requesting this court to

strike down the restriction on its face.

C.

The manifest objective of the Internet restrictions in the

authorizing statute and the Parole Board's regulations is not to

eliminate the ability of released offenders on PSL or CSL to

access the Internet in its entirety. Instead, the provisions

are legitimately aimed at restricting such offenders from

participating in unwholesome interactive discussions on the

Internet with children or strangers who might fall prey to their

potential recidivist behavior.

We recognize that websites such as Facebook and LinkedIn

have developed a variety of uses apart from interactive

communications with third parties. Even so, the Parole Board

has reasonably attempted to draw the line of permitted access in

a fair manner that balances the important public safety

interests at stake with the offenders' interests in free

expression and association. As the Deputy Attorney General

acknowledged at oral argument, it is not the Parole Board's

intention that these provisions bar appellants from having

21 A-1459-11T2
Internet access to news, entertainment, and commercial

transactions.

Significantly, courts in other jurisdictions have upheld

comparable Internet usage restrictions for released sex

offenders, often subject to the directives of their parole

officers. For example, the United States Court of Appeals for

the District of Columbia Circuit upheld a tailored Internet

usage restriction for the probationer there, a convicted sex

offender with a history of soliciting sex from minors and

trading child pornography. United States v. Love, 593 F.3d 1,

11-13 (D.C. Cir. 2010). Like appellants here, the probationer

in Love argued that the Internet usage restriction was

excessive, "in light of the near ubiquity of the Internet in

everyday life." Id. at 11. The court rejected that claim,

deferring to the probation board's determination that the

restriction was appropriate in light of the nature of the

appellant's crimes. Id. at 11-12. Although recognizing that

the Internet restriction would "no doubt" substantially affect

the appellant's day-to-day activities, the court noted, however,

that it would also appropriately prevent him from using the

Internet to trade child pornography. Ibid. All of these

factors must be considered together, the court explained, and in

22 A-1459-11T2
doing so, it held that the probation board's decision was

reasonable. Id. at 12-13.

In a similar vein in United States v. Crandon, 173 F.3d 122

(3d Cir. 1999), the Third Circuit Court of Appeals upheld as

constitutional an Internet usage restriction as a condition of

the defendant's supervised release. There, the defendant had

used the Internet as a means to develop a sexual relationship

with a young girl over a period of several months. Id. at 127.

The defendant objected to the condition, arguing that it

unnecessarily infringed upon his liberty interests and bore no

logical relation to his offense. Ibid. The Court of Appeals

rejected this argument, noting the reasonableness of the

restriction in light of the defendant's sexual history. Ibid.

Finding no violation of the defendant's constitutional rights,

the court affirmed the Internet usage restriction. Ibid.5

5
The federal appellate case law on this subject is extensive,
and most of the circuit courts of appeal have upheld comparable
Internet restrictions. See, e.g., United States v. Ellis, 720
F.3d 220, 225 (5th Cir. 2013) (upholding a condition requiring
the defendant to receive prior approval from the court before
"possess[ing], hav[ing] access to, or utiliz[ing] a computer or
internet connection device"); United States v. Atias, 518 F.
App'x 843, 846-47 (11th Cir. 2013) (upholding computer and
Internet restrictions as a condition of supervised release where
the defendant could still "petition the court for approval to
use either a computer or the internet, and the restrictions were
related to the 'horrific' and 'unthinkable' nature and
circumstances of the offense, as well as the need for deterrence
and public protection"); United States v. Deatherage, 682 F.3d
(continued)

23 A-1459-11T2
(continued)
755, 764 (8th Cir. 2012) (finding that where the defendant
received and possessed child pornography, a restriction on his
ownership and use of computers or other similar devices was not
unreasonable because the ban would be limited "to installing
approved computer monitoring devices and consenting to
unannounced examination of his computers and storage devices");
United States v. Accardi, 669 F.3d 340, 348 (D.C. Cir. 2012)
(upholding a qualified ban on the defendant's ability to access
the Internet after conviction for sex crimes); United States v.
Balon, 384 F.3d 38, 43-46 (2d Cir. 2004) (upholding a condition
of supervised release that required a defendant convicted of
transporting child pornography through the use of a computer to
provide the U.S. Probation Office with notification of any
computers he would use during his supervision term); United
States v. Granger, 117 F. App'x 247, 248-49 (4th Cir. 2004)
(upholding a special condition of release for the defendant who
had used his computer to transport and ship images of child
pornography that prohibited him from possessing or using a
computer that could connect to a network); United States v.
Reardon, 349 F.3d 608, 620-22 (9th Cir. 2003) (upholding a
restriction that required a convicted sex offender to receive
prior approval from a probation officer before possessing or
using a computer with access to any online service); United
States v. Suggs, 50 F. App'x 208, 210-11 (6th Cir. 2002)
(upholding a condition of supervised release in a fraud case
that prohibited the defendant from having access to a personal
computer); United States v. Walser, 275 F.3d 981, 987-88 (10th
Cir. 2001) (upholding a restriction on Internet access because
the defendant "is not completely banned from using the
Internet," but rather "must obtain prior permission from the
probation officer"). But see United States v. Goodwin, 717 F.3d
511, 523 (7th Cir. 2013) (vacating a special condition of
release that required the defendant to install Internet
monitoring software on his computers, submit to searches of his
person, computer, and other property, and allow his computer to
be removed for examinations because the court "fail[ed] to see
how these broad restrictions are reasonably related to [the
defendant's] offense, history, and personal characteristics");
United States v. Perazza-Mercado, 553 F.3d 65, 69-75 (1st Cir.
2009) (remanding the issue of a total ban on home Internet use
as a condition of supervised release to the district court and
suggesting that a more appropriate restriction be devised that
"reconciles our concern that a convicted sex offender could use
(continued)

24 A-1459-11T2
 D.

Guided in part by the weight of authority from other

jurisdictions, we are satisfied that the Internet restrictions

adopted here by the Parole Board have been constitutionally

tailored to attempt to strike a fair balance. Hence, we reject

appellants' arguments to strike them down on their face. We

instead uphold the regulations as valid under both the First

Amendment and the New Jersey Constitution, subject to the right

of appellants or other offenders who are subject to a CSL or PSL

condition to pursue permission from a parole official to gain

access to a specified website for a benign purpose.

We do not presume in the abstract that the Parole Board and

individual parole officers will respond to such requests rigidly

or unfairly, or that it will ignore an offender's individual

circumstances. Instead, this procedural avenue should be

exhausted first, subject to the right of an offender to bring a

future as-applied constitutional challenge if necessary.

"Facial invalidation 'is, manifestly, strong medicine' that

'has been employed by the Court sparingly and only as a last

(continued)
the internet to continue a pattern of inappropriate behavior
towards minors with the potential of legitimate uses of the
internet that might be crucial to that individual's
rehabilitation").

25 A-1459-11T2
resort.'" Binkowski v. State, 322 N.J. Super. 359, 375-76 (App.

Div. 1999) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93

S. Ct. 2908, 2916-17, 37 L. Ed. 2d 830, 841-42 (1973)). In

keeping with such a cautious approach, "[e]ven in a First

Amendment case, federal courts are admonished not 'to anticipate

a question of constitutional law in advance of the necessity of

deciding it, . . . [or] to formulate a rule of constitutional

law broader than is required by the precise facts to which it is

to be applied.'" Id. at 373 (quoting Brockett v. Spokane

Arcades, Inc., 472 U.S. 491, 501, 105 S. Ct. 2794, 2801, 86 L.

Ed. 2d 394, 404 (1985)); see also Washington State Grange v.

Washington State Republican Party, 552 U.S. 442, 450, 128 S. Ct.

1184, 1191, 170 L. Ed. 2d 151, 161 (2008) ("Facial challenges

are disfavored for several reasons. Claims of facial invalidity

often rest on speculation. As a consequence, they raise the

risk of 'premature interpretation of statutes on the basis of

factually barebones records.'" (quoting Sabri v. United States,

541 U.S. 600, 609, 124 S. Ct. 1941, 1948, 158 L. Ed. 2d 891, 900

(2004))).

Thus, courts at times will sensibly decline to strike down

a law or regulation on its face, and instead reserve claims of

unconstitutionality for future as-applied litigation. See,

e.g., Doe v. Reed, ___ U.S. ___, 130 S. Ct. 2811, 177 L. Ed. 2d

26 A-1459-11T2
493 (2010) (holding that disclosure of the identity of persons

signing petitions in support of ballot referenda does not

facially violate the First Amendment, but leaving open the

possibility of an as-applied challenge if it could be shown that

such disclosure would expose those who had signed petitions to

harm); Washington State Grange, supra, 552 U.S. at 457-58, 128

S. Ct. at 1195, 170 L. Ed. 2d at 165 (declining to declare a new

election process facially invalid because the challengers'

arguments were based on "factual assumptions about voter

confusion," and noting that such a "factual determination must

await an as-applied challenge"). A similar approach is

warranted here.

We also reject appellants' claims that the Internet access

restrictions are procedurally flawed or do not comport with APA

standards. As we directed in B.M., supra, the regulations were

adopted through public notice and comment. In fact, none of the

present appellants or their common attorney presented any

objecting comments to the proposed Internet regulations before

their promulgation, although we recognize that they were not

obligated to do so.6 On an individual level, it is also

6
As a note of caution, however, we urge the Parole Board to be
amenable to fine-tuning the Internet regulations as technology
advances and the nomenclature and uses of cyberspace continue to
evolve.

27 A-1459-11T2
procedurally significant that appellants received advance notice

that they would be subject to the Internet restrictions.

In addition, we find no violation of due process

principles, as the Internet restrictions are reasonably crafted

on their face to promote important State interests. See

Jamgochian, supra, 196 N.J. at 239-40 (explicating due process

principles under the Due Process Clause and Article I, Paragraph

1 of the New Jersey Constitution).

In sum, we hold the Internet restrictions to be

constitutional on their face, and that they do not otherwise

violate the law.

III., IV., V.

[At the direction of the court, the
published version of this opinion omits Part
III (which relates to the polygraph testing
issue that has been referred for an
evidentiary hearing), Part IV (which upholds
the Halloween curfew), and Part V (which
deems moot L.A.'s challenge to his previous
electronic monitoring). See R. 1:36-3.]

VI.

For the reasons noted, we (1) affirm the Parole Board's

Internet restrictions, subject to potential as-applied

challenges after exemptions are sought; (2) refer the polygraph

issues for fact-finding; (3) uphold the Halloween curfew; and

(4) dismiss as moot L.A.'s challenge to electronic monitoring.

28 A-1459-11T2
Our jurisdiction is retained only as to the polygraph issues,

pursuant to the supplementation procedures under Rule 2:5-5(b)

that have been outlined in this opinion.

29 A-1459-11T2