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Louisiana Law Prohibiting Use or Access of Social Media Sites by Sex Offenders Found Overbroad and Void for Vagueness by District Court

Monday, March 12, 2012
Doe v. Jindal, No. 11-CV-00554, 2012 BL 36905 (M.D. La. Feb. 16, 2012) The U.S. District Court for the Middle District of Louisiana struck down as unconstitutional a Louisiana statute that criminalized the using or accessing of social networking websites, chat rooms, or peer-to-peer networks by persons convicted of certain crimes and required to register as sex offenders. The court found that the statute, La. R.S. § 14:91.5, was overbroad on its face and void for vagueness, and that a state regulation implementing the statute did not cure the Act's deficiencies.

Law Prohibited Sex Offenders from Using or Accessing Social Media

In 2011, Louisiana Governor Bobby Jindal signed into law La. R.S. § 14:91.5, which added a section to the state Criminal Code titled "Unlawful use or access of social media." The law applied to persons who had been convicted of certain specified sex-related crimes and crimes involving minors—including offenses such as indecent behavior with juveniles, possession of pornography involving juveniles, video voyeurism, and computer-aided solicitation of a minor—and who were required to register as sex offenders. The statute prohibited such persons from "using or accessing of social networking websites, chat rooms, and peer-to-peer networks." The term "chat room" was defined as "any Internet website through which users have the ability to communicate via text and which allows messages to be visible to all other users or to a designated segment of all other users." Id. § 14:91.5(C)(1). The Act defined "peer-to-peer network" as "a connection of computer systems whereby files are shared directly between the systems on a network without the need of a central server." Id. § 14:91.5(C)(3). The term "social networking website" referred to a website that "allows users to create Web pages or profiles about themselves that are available to the general public or to any other users;" or "offers a mechanism for communication among users, such as a forum, chat room, electronic mail, or instant messaging." Id. § 14:91.5(C)(4). The statute also provided that it shall not be unlawful for a person covered by the law to use or access social media "if the offender has permission . . . from his probation or parole officer or the court of original jurisdiction." Id. § 14:91.5(B).

Plaintiffs Claimed Law Infringed Constitutional Rights

Shortly after the Act became law, pseudonymous plaintiffs John Doe and James Doe filed a civil action against the Governor and other state officials, seeking a declaratory judgment that the Act was unconstitutional. According to their complaint, John Doe had been convicted of possessing child pornography, and after serving a prison sentence, was released without supervision by a probation or parole officer. James Doe allegedly pleaded guilty in another state to the charge of having a sexual encounter with a minor. Both plaintiffs alleged that the Louisiana statute infringed their free speech rights under the First Amendment and that it was so vague as to deny them due process. The defendants disputed the constitutional claims and asserted that the plaintiffs lacked standing to challenge the statute because there was no indication that the state intended to punish them for acting in violation of the law. The defendants observed that the Louisiana Department of Public Safety and Corrections had promulgated a regulation to provide "additional guidance about how the Act is intended to operate." Jindal at 5. Contending that the regulation prescribed a narrow range of enforcement actions, the defendants argued that the regulation made it "clear that the Act is not targeted at the sort of general media websites plaintiffs fear it will reach." Id. at 6.

Chilling Effect on Free Speech Sufficient for Standing

The court conducted a bench trial, and on February 16, 2012, issued an opinion declaring the Louisiana statute to be unconstitutional. In that opinion, the court first disposed of the defendants' argument that the plaintiffs lacked standing. It noted that the U.S. Court of Appeals for the Fifth Circuit has held that in order for a plaintiff to prove an injury in fact sufficient to support a facial challenge to a statute under the First Amendment, the plaintiff must demonstrate a "serious interest in acting contrary to [the] statute." See Nat'l Federation of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202, 208 (5th Cir. 2011). The U.S. Supreme Court has held that litigants may "challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Jindal at 9 (citing Virginia v. American Booksellers Association, Inc., 484 U.S. 383, 392-93 (1988)). In addition, in the Fifth Circuit, "a chilling of speech because of the mere existence of an allegedly vague or overbroad statute can be sufficient injury to support standing." Id. (quoting Center for Individual Freedom v. Carmouche, 449 F.3d 655, 660 (5th Cir. 2006)). In the instant case, the plaintiffs asserted that the breadth and ambiguity of the statute induced persons in their position to refrain from engaging in lawful and protected expression out of fear of prosecution, including self-censorship of their Internet activity. The court held that this alleged "substantial chilling effect on their First Amendment rights" was sufficient to confer standing. Id.

Law Found Substantially Overbroad in Violation of First Amendment

The plaintiffs argued that the Act was facially overbroad and unconstitutional because it not only banned their use of social networking sites such as Facebook and MySpace, but effectively prohibited any use of the Internet at all. They pointed out that a very wide variety of websites potentially met the Act's definition of a "social networking website" because a vast number of them—including Hotmail, Gmail, Yahoo!, LinkedIn, Monster, USAJOBS.gov, CNN, The New York Times, and The Economist—"offer a mechanism for communication among users" in the form of comments and content forwarding. Jindal at 4. According to the plaintiffs, the Act "involves a greater intrusion on plaintiffs' First Amendment rights than is reasonably necessary in light of the state's legitimate interest in protecting minors." Id. at 10. The court agreed with the plaintiffs, finding that the Act was "substantially overbroad and therefore invalid under the First Amendment." Id. at 13. It noted that the Supreme Court has held that "a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." United States v. Stevens, 130 S. Ct. 1577, 1587 (2010). In the present case, the court found that the Louisiana statute "impose[s] a sweeping ban on many commonly read news and information websites, in addition to social networking websites such as MySpace and Facebook." Jindal at 10. "The purported definition of 'chat room,'" the court reasoned, "is particularly problematic, as it appears to ban an extensive array of websites . . . .Therefore, those seeking to comply with the law face confusion as to which websites they are prohibited from accessing." Id. at 11. The court noted that although the Act allowed access or use of social media when permitted by a parole or probation officer or by the court with original jurisdiction over the offense, the Act provided no standards for evaluating such a request. Furthermore, the Act did not provide a means for offenders who were not under supervision to obtain permission, and in any event, courts may not exercise continuing jurisdiction over a criminal defendant after he has served the imposed term of imprisonment and any court-ordered period of supervision. Finally, the court observed that a Louisiana state statute cannot create a basis for federal courts or state courts outside of Louisiana to exercise such continuing jurisdiction. Accordingly, the court held that the statutory exception for expressly permitted use or access of social media did not sufficiently narrow the scope of the statute to render it constitutional. The court observed that "there can be no doubt that the state has a wholly legitimate interest in protecting children from sex offenders online," but that the state's interests "can [only] be served adequately by a narrowly drawn statute tailored precisely toward the conduct the [state] wishes to proscribe." Id. at 13. Finding that the Act was "not crafted precisely or narrowly enough," the court held that it was substantially overbroad on its face in violation of the First Amendment. Id.

Law Found Void for Vagueness

Turning to the plaintiffs' claim that the Act was void for vagueness, the court explained that courts may strike down as unconstitutional criminal laws that do not "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly." Jindal at 14. (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). Similarly, courts will invalidate a statute that "delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis" because of the "attendant dangers of arbitrary and discriminatory application." Id. (quoting Grayned, 408 U.S. at 108). In the instant case, the court noted that "the Act does not clarify which websites are prohibited." Id. As a result, affected individuals have refrained from accessing many websites that would otherwise be permissible for fear that they may unintentionally violate the law. Because the statute placed persons subject to the Act in peril of criminal prosecution, the court found that the ambiguity of the statute rendered it void for vagueness.

Effect of a Narrowing Regulation

The court acknowledged that a law is not invalid as overbroad where it is "possible, applying well-established principles of statutory construction, for us to construe it narrowly so that it does not forbid protected speech." Jindal at 15 (quoting Hill v. City of Houston, 789 F.2d 1103, 1112 (5th Cir. 1986)). In addition, the Supreme Court has held that when considering a facial challenge to a state law, federal courts must "consider any limiting construction that a state court or enforcement agency has proffered." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.5 (1982). However, in the instant case, the court "decline[d] to recognize the promulgated regulation as a cure to the Act's deficiencies" because the regulation applied only to sex offenders under the supervision of probation officers of the state of Louisiana. Jindal at 15. Because neither of the plaintiffs was under the supervision of the state of Louisiana, the court held that the regulation "fail[ed] to provide any form of relief or protection to" them, and thus did not ameliorate the unconstitutional aspects of the Act. Id. DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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