Overview
A man who stalked a woman in person and through a rotating series of fake social media accounts was ordered, as a condition of extended supervision, to stay off social media entirely. The court of appeals affirmed under State v. Rowan: a condition may burden a constitutional right so long as it is not overly broad and is reasonably related to rehabilitation.1
The question this Court took is broader — whether and to what extent a circuit court at sentencing can regulate a defendant’s First Amendment activity as a condition of extended supervision.2 That reaches every speech-adjacent condition imposed in Wisconsin, and the bench spent much of the hour on a problem neither party solved: no Wisconsin statute defines “social media.”
What You Should Know
Four things to carry into the decision
- The fight is about the standard, not the facts. Rowan’s test is a discretion standard. Petersen asks for heightened scrutiny; the State asks for something near rational basis, drawing on Turner v. Safley and Griffin v. Wisconsin.3
- Nobody can define the regulated conduct. Wisconsin has no statutory definition of “social media.” Texas and Florida do. Packingham declined to supply one.4
- Watch the access-versus-use distinction. A ban on using a platform to contact or speak about a victim is narrow. A ban on accessing platforms sweeps in banking, job applications, news, and church bulletins. The condition as written is an access ban.
- The posture is soft on both sides. Trial counsel called the State’s conditions appropriate, so the State pressed forfeiture and ripeness; the postconviction court reserved rather than denied; and Wis. Stat. § 302.113(7m) permits modification once a year.5
Which Standard Governs?
Neither frame fits cleanly, which is why Rowan’s overbreadth prong is doing the real work.
Heightened scrutiny, via King
Packingham struck down a statute barring registered sex offenders from commercial social networking sites, applying intermediate scrutiny. State v. King is the Wisconsin bridge importing that standard into review of supervision conditions.
Something near rational basis
Turner v. Safley asks only whether a restriction on an incarcerated person’s speech is reasonably related to legitimate penological interests. Griffin supplies the premise that a convicted felon does not stand in the same position as someone who has not been convicted.
What Happened
The conduct that produced the disputed condition preceded the gas station. Click any step for detail.
The accounts, and the blocking
Petersen located the victim’s social media accounts and posted harmful things about her. When she blocked him he created new accounts and did it again. She eventually deleted her accounts altogether.
The gas station
Petersen entered a Kenosha County gas station where a woman who had refused his romantic advances worked. He carried a knife and a replica AK-pattern rifle and threatened to kill her. Eighteen people were present.
The condition is imposed — without objection
The circuit court (Milisauskas, J.) imposed a no-social-media condition of extended supervision. Trial counsel did not object; he described the State’s proposed conditions as appropriate.
Reserved, not denied
Petersen moved to strike the condition on First Amendment grounds. The circuit court did not deny the motion outright. It observed that he could refile when he was actually approaching release, because that is when the condition would affect him.
Court of appeals affirms
District II affirmed in a published opinion, applied Rowan, and declined to reach the State’s judicial-estoppel and forfeiture arguments because it was affirming on the merits.1
Legal Background
The governing Wisconsin test is short. Conditions of extended supervision may impinge on constitutional rights so long as they are not overly broad and are reasonably related to rehabilitation. Review is for erroneous exercise of discretion, measured by how well the conditions serve rehabilitation and the protection of state and community interests. The premise underneath is that a convicted felon does not stand in the same position as someone who has not been convicted, a proposition Wisconsin traces to Edwards and Oakley and the federal courts to Griffin.3
The federal overlay is where the parties diverge. Packingham v. North Carolina struck down a statute barring registered sex offenders from accessing commercial social networking sites, applying intermediate scrutiny.4 Packingham involved a completed sentence and a legislative ban of general application, not an individualized condition of supervision, which is the distinction the State builds on.
The State’s alternative frame is Turner v. Safley, which asks only whether a restriction on an incarcerated person’s speech is reasonably related to legitimate penological interests. The Wisconsin bridge is State v. King, which Petersen reads as importing Packingham’s intermediate scrutiny into review of supervision conditions.
Whether King did that, and whether this Court will adopt it, is the case.
Key Exchanges
Summarized from the argument rather than quoted, and presented without speaker attribution pending confirmation against the Court’s recording.
The bench pressed both sides repeatedly on what “social media” means, noting that Wisconsin has no statutory definition while other states do, and that Packingham itself declined to draw the line. Neither advocate offered a definition the bench accepted.
Several questions separated using a platform to reach or speak about the victim from merely having an account. A blanket access ban reaches conduct with no connection to the offense; a use restriction tracks the harm.
A justice who identified herself as a former circuit judge questioned whether the sentencing court is the right actor, given that a Department of Corrections agent will supervise Petersen day to day and can respond to conduct as it occurs.
Zoom In
The strongest thing about Petersen’s position is not the First Amendment. It is the vagueness problem sitting inside the condition.
A supervision condition is enforceable by revocation. A condition that forbids “social media” without defining it delegates to a supervising agent the decision whether a job-application portal, a church group, a neighborhood forum, or a messaging feature inside a banking application counts.
Wisconsin has no statutory definition to borrow. That is a due process argument as much as a speech argument, and it does not require the Court to adopt intermediate scrutiny to win.
Petersen is years from supervision, trial counsel called the conditions appropriate, the postconviction court reserved rather than denied, and the statute gives him an annual mechanism to seek modification when the condition bites.
Packingham is not on point, because it struck a legislative ban on a class of people who had completed their sentences. The State’s Turner frame is not on point either, because Turner governs people in custody and extended supervision is not custody. Griffin supplies the reduced-expectation principle without supplying a tier of scrutiny.
That is why Rowan’s overbreadth prong is doing the real work, and why the Court may simply hold that overbreadth review of a condition burdening speech requires a fit between the restriction and the conduct that produced it.
On this record the narrower conditions would have been easy to draft, which is the quiet weakness in the State’s defense of the broad one.
What’s Next
Four things to watch in the opinion.
Does the opinion announce a tier of scrutiny?
Intermediate scrutiny makes every speech-adjacent condition in Wisconsin litigable and King the governing framework. Holding that Rowan is the whole test insulates discretionary conditions from constitutional attack.
Anything about defining “social media”?
An opinion instructing circuit courts to specify the platforms, functions, or conduct covered would change sentencing practice immediately and without a constitutional holding. It is also the most likely place for a concurrence.
What the Court does with § 302.113(7m)
If annual modification cures overbreadth, the burden of narrowing conditions shifts permanently onto supervised people and their counsel.
A forfeiture or ripeness disposition
That would leave the granted question unanswered and the tension between King and Rowan unresolved.
Endnotes & Authorities · 5 citations
- State v. Jonathan James Petersen, 2025 WI App 74, No. 2024AP581-CR (Ct. App. Nov. 19, 2025) (Gundrum, J., joined by Neubauer, P.J., and Lazar, J.), affirming the Kenosha County Circuit Court (Milisauskas, J.), No. 2022CF809. Review granted May 20, 2026. The two-part test is from State v. Rowan, 2012 WI 60, 341 Wis. 2d 281, 814 N.W.2d 854.
- Issue as stated in the Court’s September 2026 calendar and case synopses; argued September 23, 2026. Facts as stated in that synopsis and the court of appeals opinion.
- State v. King, 2020 WI App 66, 394 Wis. 2d 431, 950 N.W.2d 891; Turner v. Safley, 482 U.S. 78 (1987); Griffin v. Wisconsin, 483 U.S. 868 (1987); State v. Oakley, 2001 WI 103, 245 Wis. 2d 447, 629 N.W.2d 200; Edwards v. State, 74 Wis. 2d 79, 246 N.W.2d 109 (1976).
- Packingham v. North Carolina, 582 U.S. 98 (2017) (Alito, J., concurring in the judgment, on the difficulty of defining the regulated category).
- Wis. Stat. § 302.113(7m) (petition to modify conditions of extended supervision; not more than once per year).