Packingham Jr.: Louisiana Court Upholds Ban on Certain Sex Offenders Using Many Social Media Sites

The relative narrowness of the law, the court concludes, distinguishes the law from the one struck down in Packingham v. North Carolina.

Louisiana Rev. Stats. § 14:91.5. forbids "intentional use of a social networking website by a person who is required to register as a sex offender" who had been convicted of sex crimes against minors or of video voyeurism. The statute defines social network website, and excludes:

(i) An Internet website that provides only one of the following services: photo-sharing, electronic mail, or instant messaging.

(ii) An Internet website the primary purpose of which is the facilitation of commercial transactions involving goods or services between its members or visitors.

(iii) An Internet website the primary purpose of which is the dissemination of news.

(iv) An Internet website of a governmental entity….

Yesterday's Louisiana Court of Appeal decision in State v. McMahon (written by Judge Jeff Cox and joined by Chief Judge D. Milton Moore III and Judge Frances Jones Pitman) reasoned that the Louisiana statute differed from the similar North Carolina statute struck down by the U.S. Supreme Court in Packingham v. N.C., for two reasons:

[1.] By tailoring the statute, the Louisiana legislature has targeted those offenders who "often pose a high risk of engaging in … crimes against victims who are minors even after being released from incarceration" which is "of paramount governmental interest." …

[2.] Louisiana has two additional exclusions to the definition of social networking website: "An Internet website the primary purpose of which is the dissemination of news"; and "An Internet website of a governmental entity." The North Carolina statute prevented access to social networking websites. The Louisiana statute is distinguishable from the North Carolina statute because it does not prevent access to social networking websites, it only prevents use of the websites. "Use" is defined in the Louisiana statute as "to create a profile on a social networking website or to contact or attempt to contact other users of the social networking website."

These distinctions between the two statutes speak directly to the concerns of the Supreme Court that offenders would not have access to sources for current events, checking employment ads, and "exploring the vast realms of human thought and knowledge." …

Congratulations to Assistant D.A. Justin A. Wooley, who represented the state.

Comments

[Rossami]

Less bad than the overturned North Carolina statute but still wrong. In particular, it's worth noting that the legislature and the court relied on recidivism assertions that are at best suspect and unreliable. If this were a punishment included as part of the specific criminal's sentence, it would be defensible. Imposing this ban as a blanket requirement without regard for individual facts and with no option for judicial discretion is fundamentally unjust and ought to be unconstitutional.

Note, by the way, that there is no 'romeo and juliet' exception to this law. So a pre-teen taking a picture over the fence of a 17-year-old neighbor in a bathing suit will still earn the elevated punishments and permanent stigma of a middle-aged pedophile.

[CommentMonkey]

Really hard to see how this statute survives S Ct review unless Packingham is eviscerated. The primary effect of the law is still to prohibit speech, and it still prohibits vastly more speech than necessary to address the harm of recidivists using social media to target new victims. The use/access distinction strikes me as meaningless, in the First Amendment context. Any attempt to speak via social media is going to constitute "use."

I also wonder about vagueness problems with respect to the two exclusions based on the "primary purpose" of sites in question. How is the target of the law supposed to know what a website's primary purpose is? Would one say the primary purpose of, say, the NYT website is to disseminate news or to derive revenue from subscriptions and ads? I'd argue the latter. If the web address ends in ".com," I don't think it's primary purpose is to disseminate news.

One example of overreach cited in the concurring opinion in Packingham (which was more pro-government than the majority opinion) was application of the NC law to WebMD. I'm not so sure the LA statute wouldn't also reach WebMD. It wouldn't be screened out by either of the two new exclusions.

Packingham is premised on the idea that forbidding virtually all speech on popular online platforms is too broad a restriction to impose on people who have completed their sentences. The LA statute slightly narrows the class of affected people and the types of online platforms, but, on those platforms still covered, the speech restrictions are just as sweeping and absolute. This doesn't solve the Packingham problem.

[Mcmahonjc90]

I'm now in the La.Supr.Court. I agree that the use/access distinction they used was just a tactic for the LA AG to draw the judges attention away from the fact that no matter how this statute is worded it will violate our first amendment rights.