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Sex Offenders, Facebook and Free Speech

by JULIE HILDEN

On February 16, after a bench trial, Chief Judge Brian A. Jackson of the U.S. District Court for the District of Louisiana struck down a 2011 Louisiana criminal statute entitled “Unlawful use or access of social media.”  Louisiana Governor Bobby Jindal has said that he will appeal the ruling.

In this column, I’ll argue that Judge Jackson’s ruling was correct, and that Louisiana’s children would be better served by a narrower statute that might actually be held to be constitutional, and/or by websites’ adopting safety measures on their own.

Relatedly, I’ll suggest that Governor Jindal is likely defending the law for political purposes, as it’s unlikely that he or his advisors actually believe that it is constitutional.

The Statute’s Broad Terms

The law at issue stated that registered sex offenders who had been convicted of crimes against minors or juveniles were prohibited from “using” or “accessing” “social-networking sites, chat rooms, and peer-to-peer networks.”  (Under the law, a probation or parole officer, or the court that originally heard the criminal case, can, however, override this prohibition and allow access.)

As Judge Jackson noted, each of the statute’s key terms was defined extremely broadly:

A “chat room” is 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.”

A “social networking website” is defined as an “Internet website” that either “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.”

A “peer-to-peer network” is defined as “a connection of computer systems whereby files are shared directly between the systems of a network without the need of a central server.”

The Plaintiffs’ Arguments

The plaintiffs argued that the statute is void for vagueness and that it is overbroad, in violation of the First Amendment.

The overbreadth doctrine holds that laws may be struck down if they reach First Amendment-protected speech, as well as speech that can constitutionally be regulated, because such laws may “chill”—that is, inhibit—the constitutionally-protected speech.

The plaintiffs say that this is exactly what is happening here.  Specifically, they claim that, under the law, they are afraid to use even sites such as those of mainstream media organizations such as CNN.com, job-search sites, and YouTube (and these are just a few of the examples they provide).  That is the case, they say, because such sites technically are “social networking sites” under the law’s definition, for these sites “offer[] a mechanism for communication among users” via comments, message boards, and the like.

The plaintiffs also argued that—because violations of the statute trigger criminal penalties—the law runs afoul of the Fourteenth Amendment Due Process Clause’s prohibition on vague criminal laws.  That prohibition ensures that criminal defendants must have fair notice, at the time they act, as to what conduct is, and is not, prohibited.  Here, the plaintiffs said, such notice was not provided by the law.

The State of Louisiana’s Arguments

Governor Jindal and the other defendants, in turn, contended that the plaintiffs should have availed themselves of the possibility of getting their parole or probation officers to override the statute, as they had the power to do, before going to court.

The defendants also claimed that an interpretive regulation from the Louisiana Department of Public Safety and Corrections ought to obviate the plaintiffs’ concerns about vagueness or overbreadth—for instance, by assuring the plaintiffs that they will not fall under the law simply because they visit mainstream news sites that happen to include message boards or allow comments.

The Judge’s Ruling: The Standing Issue

Judge Jackson began his analysis by holding that the plaintiffs have standing—that is, the legal right—to challenge the law at issue, despite the fact that the law has not yet been applied in practice.  Judge Jackson rightly reasoned that since this was a First Amendment case, a “chilling effect”—that is, the law’s propensity to silence speech that would otherwise be expressed—was sufficient to confer standing.

The judge also noted that the plaintiffs themselves stated that they feared harsh consequences simply for visiting mainstream websites.  And he took into account, as well, the possible similar fears of those not appearing before the court.

The Judge’s Ruling: The First Amendment Issue

With standing established, the judge noted that to win on their overbreadth challenge, the plaintiffs had to show that the statute had substantial unconstitutional applications, compared to its legitimate sweep.  Again, the plaintiffs prevailed.

Focusing especially on the extremely broad definition of “chat room” mentioned above, Judge Jackson agreed with the plaintiffs that even an innocuous mainstream site with a “comments” function could be deemed, under the law, to be a site “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.”

Judge Jackson was also unimpressed by the other options that the defendants pointed out were available to the plaintiffs:  getting a parole-officer waiver, or relying upon the interpretive guidance that had been issued regarding the statute.

The judge saw serious jurisdictional problems in forcing post-probation offenders to return to the court that had sentenced them to seek a waiver.  And as for the interpretive guidance, he was skeptical of it, as a purported limitation to the statute that was missing from its original text, and had not been enacted into law.

Ultimately, the judge found the Act both overbroad and void for vagueness, and therefore struck it down.

A Genuine Court Battle, Or Just An Opportunity for Political Showboating?

Soon after Judge Jackson’s decision, Governor Jindal made the following statement: “Louisiana families should have the comfort of knowing their children are able to go online without the threat of sex predators.  It’s offensive that the court would rule that the rights of sex predators are more important than the rights of innocent children.  As the father of three young kids, I will do everything in our power to protect Louisiana families and that includes appealing to the Court of Appeals for the Fifth Circuit and bringing legislation this upcoming session to fortify and strengthen the law.”

It seems likely, based on these comments, that Governor Jindal is seeking to use this ruling for political gain.  If so, that’s a shame.  Judge Jackson’s decision followed black-letter First Amendment law.  In my view, it’s generally inappropriate for politicians to attack federal judges’ decisions, and here, it was especially inappropriate for Governor Jindal to do so, as the opinion at issue was based on solid precedent.

Could Similar Legislation Pass First Amendment Muster? 

Finally, an interesting question that this case raises is whether any similar law could survive a judge’s First Amendment scrutiny.  The law at issue here essentially tried to ban registered sex offenders from going online, by reaching so far that virtually any website might come within the law’s scope.  But the law’s ambitious reach was the very aspect that made it invalid.  A valid law, to survive a First Amendment analysis like Judge Jackson’s, would likely have to be much narrower.  But can such a law be narrowed without losing its effectiveness?  That’s the difficult issue here.

One logical way to narrow such a law might be to consider which sites and situations pose a genuine danger of connecting offenders with children, and thus leading to real-world crimes.  Public messages—such as those that are posted on well-trafficked message boards that are intended for and used by adults, the content of which anyone can see—pose relatively little risk.  In contrast, private messages between adults and children can obviously be extremely dangerous.  Thus, age-verification for private messaging might be one useful tool.

Websites themselves may also be able to help on this front—by offering age verification, and in other ways.  Clear boundaries between adults and children—created by, say, having two separate Facebooks, one for kids and their parents, and one for other adults—might work.  The key is to ensure that First Amendment rights and child safety are both honored, in the end.

The law at issue here was written as if the First Amendment did not exist. We need a law that honors both child safety and the Constitution.

JULIE HILDEN practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She is the author of a memoir, The Bad Daughter and a novel Three. She can be reached through her website.

This column originally appeared in Justia‘s Verdict.


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