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Probation ban on court attendance held too broad
First Amendment Watch

By David L. Hudson Jr.
First Amendment scholar
02.08.10

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An area of increasing litigation concerns probation restrictions and their impact on First Amendment freedoms. Often these involve associating with certain people, wearing certain gang-related clothing, sporting certain tattoos and even accessing the Internet. A California appeals court recently addressed — and modified — a probation restriction on courtroom attendance.

A California trial judge had imposed a host of probation restrictions on Joseph Rudy Leon after he pleaded no contest to drug charges and involvement in a criminal street gang. One of the conditions read: “You shall not appear at any court proceeding unless you’re a party, you’re a defendant in a criminal action, subpoenaed as a witness, or with permission of probation.”

Leon contended that his prohibition on court attendance violated his First Amendment right of access to the courts. A California appeals court agreed Feb. 2 in People v. Leon. “A general ban on being present at any courthouse or court proceeding, except when scheduled for a hearing or subpoenaed as a witness, may impinge upon a host of constitutional rights,” the court wrote.

The court cited the U.S. Supreme Court’s opinion in Bill Johnson’s Restaurants, Inc. v. NLRB (1983) for the principle that “the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances.” The California appeals opinion also said the restriction was overly broad, as “there can be a variety of legitimate reasons for being at a court proceeding, other than to intimidate or threaten a party or witness.”

The government had argued that the broad restriction was allowable because the probation officer could always approve a defendant’s attending court. But the California appeals court rightly noted that this argument simply gave “unfettered discretion” to probation officers.

The court modified the restriction to state: “You shall not be present at any court proceeding where you know or the probation officer informs you that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang, unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, or you have the prior permission of your probation officer.”

The lesson from this case is that trial courts must consider the First Amendment when imposing probation restrictions that affect fundamental First Amendment freedoms.

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