                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Chafin, Russell and Senior Judge Clements
            Argued by teleconference
PUBLISHED




            JESUS DAVILA BAILEY, III
                                                                                OPINION BY
            v.     Record No. 0613-18-3                                  JUDGE WESLEY G. RUSSELL, JR.
                                                                                JULY 30, 2019
            COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF PATRICK COUNTY
                                            Martin F. Clark, Jr., Judge

                           Vikram Kapil, Deputy Public Defender, for appellant.

                           Leah A. Darron, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   Jesus Davila Bailey, III, appellant, was convicted in a bench trial of failing to re-register as

            a sex offender in violation of Code § 18.2-472.1, second offense. First at trial and now on appeal,

            he argues that Code § 18.2-472.1 and the associated reporting requirements are unconstitutional

            because they infringe on his First Amendment rights of freedom of speech and association. For the

            reasons that follow, we disagree. Accordingly, we affirm the judgment of the trial court.

                                                        BACKGROUND

                   In all material respects, the evidence is undisputed. In 2007, appellant was convicted of four

            counts of “Unlawful Sexual Contact Second Degree” in Delaware. As a consequence of those

            convictions, he was and remains required to register as a sex offender and to comply with the

            requirements associated with that status.

                   Sometime after his convictions in Delaware, appellant moved to Virginia, and the

            Commonwealth began supervising his sex offender registration and status. The parties stipulated

            that Trooper Darren Suthers of the Virginia State Police is in charge of supervising appellant’s
status as a registered sex offender. The parties stipulated that, if called to testify, Suthers would

have testified that appellant was required to register with the state police every six months and to

report certain information as required by law.

        Among the categories of information that appellant is required to report to law enforcement

is certain information about his Internet usage. Specifically, pursuant to Code § 9.1-903(B), a sex

offender is required to “provide [law enforcement his or her] electronic mail address information,

any instant message, chat or other Internet communication name or identity information that the

person uses or intends to use[.]” Furthermore, pursuant to Code § 9.1-903(G),

                any person required to register shall reregister either in person or
                electronically with the local law-enforcement agency where his
                residence is located within 30 minutes following any change of the
                electronic mail address information, any instant message, chat or
                other Internet communication name or identity information that the
                person uses or intends to use, whether within or without the
                Commonwealth. If a probation or parole officer becomes aware of
                a change of the electronic mail address information, any instant
                message, chat or other Internet communication name or identity
                information for any of his probationers or parolees required to
                register, the probation or parole officer shall notify the State Police
                forthwith upon learning of the change.

Pursuant to Code § 18.2-472.1, a failure of a sex offender to comply with Code § 9.1-903(B),

Code § 9.1-903(G), or other reporting requirements is a Class 1 misdemeanor. A subsequent

failure to comply is a Class 6 felony.

        While being supervised as a sex offender, appellant also was subject to probation.1 Aaron

Evans was his probation officer. Evans testified that, separate and apart from the conditions



        1
         In October 2016, appellant was convicted by the Circuit Court of Henry County of a
felony violation of Code § 18.2-472.1 for failing to comply with the registration and reporting
requirements imposed upon him as a result of his status as a sex offender. He was sentenced to
five years of incarceration with four years, ten months, and twenty-seven days of that sentence
suspended. He was placed on probation for two years to insure his compliance with the terms of
his suspended sentence. He was still on probation for this offense when the acts giving rise to
the instant case occurred.
                                                 -2-
imposed upon him by Code § 9.1-903(B) and (G), there were separate conditions of probation

that had been placed upon appellant, including a prohibition on his use of social networking

Internet sites. Appellant told Evans that he did not have access to the Internet and was not using

any type of social media. During a routine search of all offenders that he supervised, Evans

discovered a Facebook account belonging to appellant. On November 8, 2016, Evans asked

appellant about the account, and appellant responded that he had been using Facebook for a “long

time” to contact out-of-state family members. As a result, appellant was arrested for both a

probation violation and for violating Code § 18.2-472.1(A).2

       Appellant filed a pre-trial motion arguing that the reporting requirements related to his

Internet use are unconstitutional as a violation of his First Amendment rights. Citing Packingham v.

North Carolina, 137 S. Ct. 1730 (2017), in which the United States Supreme Court struck down as

violative of the First Amendment a North Carolina statute that prohibited registered sex offenders

from accessing certain Internet sites, appellant argued that Virginia’s requirements regarding

reporting of his online identifiers/screennames also was unconstitutional. Specifically, he

contended that Code § 18.2-472.1’s imposition of a felony for his failure to comply with his

reporting obligations under Code § 9.1-903 chilled his exercise of his right to free speech and

association as guaranteed by the First Amendment.

       The trial court held a hearing on appellant’s motion. At the hearing, the trial court noted

that the North Carolina statute at issue in Packingham represented a near-total ban on an

offender’s use of the Internet to communicate with others while the Virginia statutory scheme

only required the reporting of certain identifying information and did not prevent appellant from


       2
         Although appellant’s probation officer testified at appellant’s trial and appellant also
separately was charged with a probation violation, the trial that is the subject of this appeal was
limited to the alleged violation of Code § 18.2-472.1. The probation violation proceeding
occurred in a different circuit court before a different circuit court judge. Accordingly, neither
appellant’s status as a probationer nor the conditions of that probation are before us on appeal.
                                                 -3-
visiting any Internet sites. Finding this distinction significant, the trial court found that the

Virginia statutory scheme “is a narrowly tailored framework that serves a significant governmental

interest[.]” As a result, the trial court concluded that the Virginia statutory scheme was

constitutional.

        Having done so, the trial court convicted appellant of violating Code § 18.2-472.1 by failing

to register his Facebook account information with law enforcement as required by Code § 9.1-903.3

Appellant appeals that conviction to this Court, again arguing that the statutory scheme violated

his First Amendment rights.4

                                             ANALYSIS

                                        I. Standard of Review

        Appellant’s challenge to the constitutionality of a statute presents a question of law that

we review de novo. Toghill v. Commonwealth, 289 Va. 220, 227 (2015). Nonetheless, in

seeking to invalidate a Virginia statute, appellant is faced with a heavy burden. “The party

challenging an enactment has the burden of proving that the statute is unconstitutional, and every


        3
         Appellant does not dispute that the screenname for his Facebook account was
information that he was required to report to law enforcement under Code § 9.1-903(B) and (G)
and that he did not report that information.
        4
          The Commonwealth argues that appellant’s constitutional challenge is not properly
before us on appeal because it is not encompassed by his assignment of error. Appellant’s
assignment of error reads: “The trial court erred when it found Va. Code § 18.2-472.1
constitutional where that statute criminalizes Appellant’s exercise of his right to speech and right
to associate guaranteed by the First Amendment to the United States Constitution.” The
Commonwealth argues the assignment of error is insufficient because Code § 18.2-472.1 merely
imposes a penalty for failing to provide the information required by the relevant provisions of
Chapter 9 of Title 9.1 of the Code of Virginia, including Code § 9.1-903(B) and (G). The
Commonwealth reasons that because appellant is challenging the reporting requirements found
in Code § 9.1-903, his failure to include an express reference to Code § 9.1-903 in his
assignment of error is fatal to his appeal. Because appellant was indicted for and convicted of a
violation of Code § 18.2-472.1 not Code § 9.1-903, Code § 18.2-472.1 specifically refers to
Chapter 9 of Title 9.1, and the fact that the statutory scheme necessarily requires the statutory
provisions to be viewed in tandem, we find that the assignment of error is sufficient to place
appellant’s constitutional challenge before us.
                                                  -4-
reasonable doubt regarding the constitutionality of a legislative enactment must be resolved in

favor of its validity.” Marshall v. N. Va. Transp. Auth., 275 Va. 419, 428 (2008). “Every law

enacted by the General Assembly carries a strong presumption of validity,” and “[w]e will not

invalidate a statute unless that statute clearly violates a provision of the United States or Virginia

Constitutions.” Id. at 427.

       Appellant bases his challenge on the First Amendment to the United States Constitution’s

guarantees of freedom of speech and association.5 Neither Code § 18.2-472.1 nor

Code § 9.1-903(B) or (G) prohibits or regulates the content of speech. See Reed v. Town of

Gilbert, Ariz., 135 S. Ct. 2218, 2227 (2015) (“Government regulation of speech is content based

if a law applies to particular speech because of the topic discussed or the idea or message

expressed.”). As such, the provisions are “content neutral and thus subject to intermediate

scrutiny[.]” Packingham, 137 S. Ct. at 1736. To survive intermediate scrutiny, the Virginia

statutory scheme must “advance[] important governmental interests unrelated to the suppression

of free speech and [must] not burden substantially more speech than necessary to further those

interests.” Holder v. Humanitarian Law Project, 561 U.S. 1, 26-27 (2010) (quoting Turner

Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189 (1997)). We apply this standard to the Virginia

statutory scheme.



       5
          The First Amendment reads: “Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the government for a
redress of grievances.” Although the word “association” appears nowhere in the First
Amendment, the United States Supreme Court has “long understood as implicit in the right to
engage in activities protected by the First Amendment a corresponding right to associate with
others in pursuit of a wide variety of political, social, economic, educational, religious, and
cultural ends.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984). Although the First
Amendment initially was understood solely as a check on the powers of the federal government,
the United States Supreme Court has long held that the provisions are applicable against the
states as a result of incorporation via the Fourteenth Amendment’s Due Process Clause. See,
e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516 (1996).
                                                  -5-
                                      II. Governmental Interest

       In determining whether Code § 9.1-903 “advances important governmental interests

unrelated to the suppression of free speech[,]” id., we recognize that it is a component of a larger

statutory scheme, the Sex Offender and Crimes Against Minors Registry Act found in Chapter 9

of Title 9.1 of the Code of Virginia (the “Act”). In adopting the Act, the General Assembly

expressly stated the Act’s purpose, providing that

               [t]he purpose of the Sex Offender and Crimes Against Minors
               Registry (Registry) shall be to assist the efforts of law-enforcement
               agencies and others to protect their communities and families from
               repeat sex offenders and to protect children from becoming victims
               of criminal offenders by helping to prevent such individuals from
               being allowed to work directly with children.

Code § 9.1-900.6

       There can be little doubt that the Commonwealth has a significant interest in deterring

sex crime recidivism and protecting communities, including children, from potential repeat sex

offenders. The United States Supreme Court repeatedly has recognized that the states have such

an interest in dealing with sex offenders. See, e.g., McKune v. Lile, 536 U.S. 24, 32 (2002)

(recognizing that “[s]ex offenders are a serious threat in this Nation” and concluding that,

because sex offenders have a high rate of recidivism, “[s]tates . . . have a vital interest in

rehabilitating convicted sex offenders[,]” id. at 33); New York v. Ferber, 458 U.S. 747, 757

(1982) (recognizing “[t]he prevention of sexual exploitation and abuse of children constitutes a

government objective of surpassing importance”). In fact, even though the United States

Supreme Court struck down as violative of the First Amendment the North Carolina statute at

issue in Packingham, it concluded that there was “no doubt that” North Carolina’s regulation and


       6
         Although emphasizing his claim that he only used the Facebook account that led to his
conviction to communicate with family members, appellant does not assert that the purpose of
the Act in general or Code § 9.1-903(B) and (G) in specific is anything other than what the
General Assembly stated in Code § 9.1-900.
                                              -6-
registration of sex offenders represented “the assertion of a valid governmental interest[.]” 137

S. Ct. at 1736. Accordingly, we hold that the Act represents the General Assembly’s attempt to

advance a significant governmental interest.

                              III. Effect on Speech and Association

       Given that the challenged statutory requirements advance a significant governmental

interest, appellant can prevail in his First Amendment challenge only if he can show that those

requirements are not “narrowly tailored,” id. (quoting McCullen v. Coakley, 573 U.S. 464, 486

(2014)), and “burden substantially more speech than necessary” to advance that interest,

Humanitarian Law Project, 561 U.S. at 27 (quoting Turner Broad. Sys., Inc., 520 U.S. at 189).

Appellant argues that, under the rationale of Packingham, Virginia’s statutory scheme fails this

test. We disagree.

       The North Carolina statute at issue in Packingham made “it a felony for a registered sex

offender to access 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.” 137 S. Ct. at 1733 (internal quotation marks and citation omitted). The statutory

definition of “commercial social networking Web site” was so broad that the United States

Supreme Court noted that the statute “might well bar access not only to commonplace social

media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and

Webmd.com[,]” id. at 1736, and it certainly prohibited convicted sex offenders from accessing

“websites like Facebook, LinkedIn, and Twitter,” id. at 1737. Calling the near total ban on the

use of social networking sites “a prohibition unprecedented in the scope of First Amendment

speech it burdens[,]” the high Court struck down the statute, finding that “to foreclose access to

social media altogether is to prevent the user from engaging in the legitimate exercise of First

Amendment rights.” Id.

                                               -7-
        Arguing that, like the North Carolina statute struck down in Packingham, the Virginia

statutory scheme applies to him because he is a convicted sex offender and touches on his use of

the Internet, appellant contends that the Virginia statutory scheme is unconstitutional for the

same reasons and rationale that the North Carolina statute failed constitutional muster. Although

the Virginia statutory scheme shares these superficial similarities with the North Carolina statute,

it is significantly different in its specifics. It is these differences and not the similarities that are

dispositive of appellant’s constitutional challenge.

        The Virginia statutory scheme is not a ban on Internet use or on accessing social

networking sites. It is merely a reporting regime; a convicted sex offender must inform law

enforcement of the identifying information, such as his screenname, that he uses when accessing

certain Internet sites. Neither Code § 9.1-903(B) nor Code § 9.1-903(G) prevents appellant from

accessing or using any Internet site. As he concedes, he is as free as anyone else (convicted sex

offender or not) to access any Internet site, visit any chatroom, and engage with any person he

contacts in cyberspace. In short, nothing in Code § 9.1-903 prevents his use of the Internet to

speak or associate with anyone, and thus, the Virginia statutory scheme, unlike the North

Carolina statute in Packingham, does not prohibit his exercise of his First Amendment rights of

speech or association.

        Recognizing this, appellant argues that the fact that he has to report his screennames

“chills” his exercise of his First Amendment rights because the government will be able to see

what he is communicating via the Internet and with whom. We disagree.

        First, there is no indication in the record that the statutory scheme had any effect on the

content of appellant’s Internet speech or his willingness to engage in it. He was not and, under

the express terms of the Act, could not be sanctioned with respect to the content of anything he

wrote or read online or for associating with someone online. Rather, he was punished only for

                                                   -8-
failing to comply with the reporting requirements. Furthermore, we note that the statutory

reporting requirements did not stop him from engaging in the very speech and associative acts

that he claims the statute potentially chills. Although he tried to hide his use, he used the

Facebook account with full knowledge that he was subject to criminal penalties if he did not

report his screenname to law enforcement. Thus, the existence of the penalty did not “chill” him

sufficiently to stop either the speech or other associative acts he sought to engage in on

Facebook.

       More importantly, the pertinent subsections of Code § 9.1-903 only require that appellant

make law enforcement aware of any “electronic mail address information, any instant message,

chat or other Internet communication name or identity information that the person uses or intends

to use[;]” neither subsection requires that appellant provide law enforcement with access to the

content he places online, the content he reads while online, or the identities of those with whom

he associates while online. The statutory scheme does not require him to give law enforcement

access to his accounts or to provide the passwords so that law enforcement can access his e-mail,

Facebook or other covered accounts. Armed with only his screenname, law enforcement will be

able to access what appellant posts and reads on the Internet and see with whom he associates

only when he does so in “public” spaces that do not require special access or passwords to view.

In this regard, he is not materially different than members of the public at large who are not

convicted sex offenders.

       Admittedly, law enforcement will be able to conduct searches for appellant’s Internet

activities using his screennames and will be able to identify him as having engaged in the speech

they find on the Internet under those screennames without doing additional research that might

be required if the speaker were not a convicted sex offender. The First Amendment, however,

does not require that convicted sex offenders be treated exactly the same as those who have not

                                                -9-
committed such offenses; it requires only that the reporting requirements “advance[] important

governmental interests unrelated to the suppression of free speech and not burden substantially

more speech than necessary to further those interests.” Humanitarian Law Project, 561 U.S. at

26-27 (quoting Turner Broad. Sys., Inc., 520 U.S. at 189).

        Here, the Virginia statutory scheme unquestionably advances a significant governmental

interest and any burden it places on appellant’s First Amendment rights of speech and

association is minimal to non-existent. Accordingly, appellant’s First Amendment rights are not

violated by the identity reporting requirements imposed by Code § 9.1-903(B) and (G) or by the

criminal penalty imposed by Code § 18.2-472.1.

                                         CONCLUSION

        Ultimately, appellant’s First Amendment challenge fails because the reporting

requirements at issue do not in any meaningful way restrict his rights of speech and association.

The requirements do not prevent him from speaking or associating; rather, they simply require

that he make his online identity and whereabouts known to law enforcement. Thus, in effect,

they are the cyber equivalent of the provisions of Code § 9.1-903 that require him to provide

information such as a photograph, DNA, address information, and fingerprints that make his

physical identity and whereabouts known to law enforcement. Neither the cyber nor physical

identity reporting requirements violate the First Amendment. Accordingly, the judgment of the

circuit court is affirmed.

                                                                                        Affirmed.




                                              - 10 -
