(Photo: Markell DeLoatch, Public Opinion)
CHAMBERSBURG – A Chambersburg woman gained more freedom last week over her own social media use, after previously being banned from using it for anything other than work as part of her punishment for causing a woman’s death last year in a vehicle crash.
The convicted woman, Deidra R. Penrose, works as an online fitness coach, and maintains a heavy social media presence where she discusses her personal life and her fitness regimen. Because her job is so intertwined with her regular life, she sought clarification on what posts count as being related to her employment and which do not.
Penrose’s sentence also specifically forbade her from talking about the victim, 71-year-old Joanne Marzolf, Marzolf’s family or the case on social media. It came up at the April hearing where Penrose appeared before Judge Angela Krom to seek clarification on the social media ban that Marzolf’s family was concerned about what Penrose may say online.
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Penrose’s case, the charges for which were filed by the Pennsylvania Attorney General’s Office, is a rare one. That’s especially true in Franklin County, where District Attorney Matt Fogal does not believe a condition relating to social media posts has been ordered in a case from his office. No-contact orders do cover social media and prohibiting people from contacting a victim or families, but not what they might post unrelated to the crime.
But still, the question of what authority judges have over offenders’ social media use has already made it to the top echelon of the judicial system.
On a national level, the ability to post on social media is being discussed by the United States Supreme Court, after a sex offender in North Carolina, Lester “J.R.” Peckingham was jailed for posting to Facebook despite North Carolina prohibiting sex offenders from using social media accessible to minors. Outlets such as NPR and Slate have covered the case, in which Peckingham’s post praising Jesus led to his arrest.
It comes down to First Amendment speech, where Peckingham’s attorney says the government is not supposed to punish someone for potentially criminal conduct. The attorney has also said that Peckingham should have the freedom to say whatever he wants on any platform.
The case’s arguments were heard by the Supreme Court in February, but a decision has not been made yet.
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Criminal Justice Professor Stephanie Jirard at Shippensburg University called the First Amendment rights “some of the most sacrosanct” in the Constitution.
Jirard said that in order for the government – Judge Krom, in Penrose’s case – to infringe on free speech, it must be necessary to achieve “compelling state interest,” meaning that it is a matter of public interest concern that the government needs to address. It also needs to “be narrowly drawn” or specific in what speech is infringed on, and the infringement must be done in the least restrictive way of the First Amendment that still achieves the government’s goal.
“Here there must be some reason for the judge to fear that the defendant will post on social media objectionable material related to the case,” Jirard said. “Judges often impose gag orders about cases, but those orders usually expire once the case is over. In the instant (Penrose’s) case, the defendant’s case won’t be over until her sentence is served and all appeals finalized.”
From a technical analysis standpoint, Jirard said Penrose has the First Amendment rights to talk about whatever she wants on social media, but the judge has the right to limit her speech by preventing her from talking about the case so as to not harm Marzolf’s family.
Jirard said these social media cases do come up, but vary heavily on the circumstances. In Peckingham’s case, she believes the law he was prosecuted under will be found unconstitutional.
Judge Krom decided to take the work-only restriction in Penrose’s sentencing condition out.
“We believe that any special condition of a defendant’s sentence must relate to some articulable rehabilitative goal of the sentence,” Krom wrote in her order. “A mere prohibition on the use of social media except for the purposes of employment… is not related to any articulate rehabilitative goal of the defendant’s sentence.”
Krom also stated that for practical purposes, the condition was extremely difficult for probation to monitor and enforce.
Now, Penrose is only prohibited from discussing the case on social media.
“I think you will see in the future courts striking down limits to social media access,” Jirard said. “Facebook, Twitter, Snapchat are the new ‘public forums’ that the soapbox in the public park used to be of yesteryear. And as Associate Justice (Elena) Kagan says, who today lives without social media?”