There is a new law in effect this week in Louisiana that prohibits convicted sex offenders whose victim was a minor from “unlawful use or access of social media.” This would certainly mean major social media outlets such as Facebook, MySpace, and Google+ are off limits to these individuals. But the American Civil Liberties Union (ACLU) of Louisiana, who is challenging the constitutionality of the statute in federal court, claims that the law would also block access for these people to other outlets, such as newspaper sites, job databases, and other websites that allow users to leave posts or comments. According to the ACLU, this makes the law overly broad and unconstitutional.
The ACLU is currently seeking an injunction prohibiting the Louisiana government from enforcing the law on behalf of an anonymous Plaintiff. The Plaintiff served four years in prison on child pornography charges and is now a computer repair technician, who is required to use the internet for his job. According to the ACLU, the newly passed law means that he is in danger of being fired.
The ACLU also complains of the exceptions that are allowed in the statute. Probation, parole officers, and judges can make exceptions to the prohibition. But, the law doesn’t specify what the procedures are for who will or won’t qualify for the exception and how to go about obtaining an exception.
Meanwhile, Louisiana Governor Bobby Jindal is forcefully challenging the
ACLU lawsuit. According to CNN, “Jindal called the lawsuit ‘a
disturbing break from reality.’ ‘If these people want to search
the Internet for new victims they can do it somewhere else,’ he
said in a statement. ‘It is frankly insulting for the ACLU to claim
it is a convicted sex offender's 'First Amendment right' to
use Facebook, MySpace, and Craigslist.’”
The main bone of contention lies in the definition of social media websites. The Louisiana law defines a “social networking website” as any 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.” Clearly, from its very definition, this could potentially encompass thousands if not millions of websites that the general public wouldn’t ordinarily categorize as social networking sites.
A first violation could result in up to ten years in prison, which means that this law carries a very high penalty, even if the person is merely caught commenting on a news article from his local paper, an act which has absolutely nothing to do with soliciting children to engage in sexual acts over the internet. As it was passed, this law is overly restrictive and vague. A law is generally considered to be vague where a person of common intelligence could not know what behavior is prohibited. Because the language and definition of a “social networking website” could potentially include a host of websites and a user may visit such a site without even realizing right away that it would fall into the “social networking” statutory definition, the law is decidedly vague. Additionally, a law is not permitted to be overly broad under the First Amendment. A law is overbroad if it prohibits substantially more expression than is necessary.
The state of Louisiana clearly intends by passing this statute to prevent known sex offenders from targeting minors over the internet in order to commit future crimes. But the criminal statute does not focus on this intent. Instead, it very broadly criminalizes all sorts of speech that have absolutely nothing to do with this end goal. In order for the law to be deemed Constitutional, the government must show that it has a compelling need to restrict all speech in this manner. It simply does not and therefore the Louisiana law should be declared unconstitutional as a violation of the First Amendment.