Doe v. Jindal, Civil Action No. 11–554–BAJ–SCR.

• Decision Date: 16 February 2012
• Docket Number: Civil Action No. 11–554–BAJ–SCR.
• Citation: 853 F.Supp.2d 596
• Parties: John DOE v. Bobby JINDAL, et al.
• Court: U.S. District Court — Middle District of Louisiana

853 F.Supp.2d 596

John DOE

v.Bobby JINDAL, et al.

Civil Action No. 11–554–BAJ–SCR.

United States District Court, M.D. Louisiana.

Feb. 16, 2012.

Held Unconstitutional

LSA–R.S. 14:91.5

Ronald Lawrence Wilson, Justin Paul Harrison, ACLU Foundation of Louisiana, New Orleans, LA, for John Doe.

John W. Sinquefield, Bridget Benoit Denicola, S. Kyle Duncan, Uma M. Subramanian, Louisiana Department of Justice, Emalie Anne Boyce, Attorney General's Office, Kurt Lawrence Wall, Louisiana Attorney General's Office, Baton Rouge, LA, for Bobby Jindal, et al.

OPINION¹

BRIAN A. JACKSON, Chief Judge.

Plaintiffs, John Doe and James Doe, filed suit against Defendants, James D. Caldwell, Jr., James M. LeBlanc, Hillar C. Moore, III, and John Phillip Haney, asserting that Louisiana Revised Statute 14:91.5(“the Act”) is unconstitutional, and they seek declaratory and injunctive relief against its enforcement.A bench trial was held on November 2, 2011.²The parties have filed pre-trial briefs (docs. 37 and 38), and post-trial briefs (docs. 48 and 49).Jurisdiction is based on 28 U.S.C. § 1331.

BACKGROUND

On June 14, 2011, Louisiana Governor Bobby Jindal signed into law LSA–R.S.14:91.5, “Unlawful use or access of social media”(doc. 1, ¶ 8).The Act took effect on Monday, August 15, 2011(doc. 1, ¶ 15).Pursuant to R.S.14:91.5, registered sex offenders who were previously convicted of crimes involving minors or juveniles are prohibited from “using or accessing of social networking websites, chat rooms, and peer-to-peer networks.”R.S.14:91.5(A)(1).The Act does not define “using” or “accessing,” but defines “social networking website,”“Chat room,” and “Peer-to-peer network” broadly.R.S. 14:91.5(c)(1)-(4).Both Plaintiffs in this case are registered sex offenders, and both are subject to the proscriptions of the Act, ³ which reads:

A.The following shall constitute unlawful use or access of social media:

(1) The using or accessing of social networking websites, chat rooms, and peer-to-peer networks by a person who is required to register as a sex offender and who was previously convicted of R.S. 14:81 (indecent behavior with juveniles), R.S. 14:81.1(pornography involvingjuveniles), R.S. 14:81.3(computer-aided solicitation of a minor), or R.S. 14:283(video voyeurism) or was previously convicted of a sex offense as defined in R.S. 15:541 in which the victim of the sex offense was a minor.

(2) The provisions of this Section shall also apply to any person previously convicted for an offense under the laws of another state, or military, territorial, foreign, tribal, or federal law which is equivalent to the offenses provided for in Paragraph (1) of this Subsection, unless the tribal court or foreign conviction was not obtained with sufficient safeguards for fundamental fairness and due process for the accused as provided by the federal guidelines adopted pursuant to the Adam Walsh Child Protection and Safety Act of 2006.

B.The use or access of social media shall not be considered unlawful for purposes of this Section if the offender has permission to use or access social networking websites, chat rooms, or peer-to-peer networks from his probation or parole officer or the court of original jurisdiction.

C.For purposes of this Section:

(1)“Chat room” means 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.

(2)“Minor” means a person under the age of eighteen years.

(3)“Peer-to-peer network” means a connection of computer systems whereby files are shared directly between the systems on a network without the need of a central server.

(4)“Social networking website” means an Internet website that has any of the following capabilities:

(a) Allows users to create web pages or profiles about themselves that are available to the general public or to any other users.

(b) Offers a mechanism for communication among users, such as a forum, chat room, electronic mail, or instant messaging.

D.(1) Whoever commits the crime of unlawful use or access of social media shall, upon a first conviction, be fined not more than ten thousand dollars and shall be imprisoned with hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence.

(2) Whoever commits the crime of unlawful use or access of social media, upon a second or subsequent conviction, shall be fined not more than twenty thousand dollars and shall be imprisoned with hard labor for not less than five years nor more than twenty years without benefit of parole, probation, or suspension of sentence.

Plaintiffs allege that the Act is facially overbroad and unconstitutional in that it significantly infringes on their First Amendment rights, as the Act will not only ban registrants from accessing Facebook and MySpace, but will also “make it a felony for registrants to browse the rest of the Internet”(doc. 1, ¶ 13).Plaintiffs further allege that, pursuant to the Act, they will be banned from accessing, inter alia, NOLA.com, CNN.com, FoxNews.com, ESPN, BBC or Reuters, NYTimes.com, Politico.com, Newsweek, The Economist, National Geographic, YouTube, Getagameplan.org (Louisiana's official hurricane preparedness website), Gmail, Yahoo, Hotmail, AOL, Linkedln, Monster, USAJOBS.gov (the federal government's employment database), eBay, Zagat, Amazon, because those websites “offer a mechanism for communication among users” in the form of comments and content forwarding (doc. 1, ¶ 14(a); R.S. 14:91.5(C)(3)(b)).⁴Plaintiffs specifically assert that:

They have web-based email accounts that they are afraid to use.They use internet-based information services to obtain professional information pertinent to their work to obtain safety and technical information pertinent to their work ....[for example,][w]ebsites that would arguably ... fall within the definition of a social networking website because they contain bulletin-board features and other social networking features.And these are all websites that our clients are afraid to access because of what this law plainly prohibits.

(Transcript, p. 26:5–17).Plaintiffs further submit that the Act violates the Due Process clause of the Fourteenth Amendment, which protects the public from vague criminal statutes(doc. 37, p. 3).

Defendants assert that Plaintiffs have never attempted to avail themselves of the exemption provision of the Act, which is featured in R.S. 14:91.5(B)(doc. 49, p. 9).That section provides:

The use or access of social media ⁵ shall not be considered unlawful for purposes of this Section if the offender has permission to use or access social networking websites, chat rooms, or peer-to-peer networks from his probation or parole officer or the court of original jurisdiction.

Defendants, therefore, argue that Plaintiffs“have no way of knowing whether the Act would pose any of the problems their First Amendment claim is based upon (e.g. prohibiting access to email and safety information)”(doc. 49, p. 9).

Defendants further assert that they have submitted a “Department Regulation”(“the regulation”)(doc. 38–2), promulgated by defendant, James M. LeBlanc, Secretary of the Louisiana Department of Public Safety and Corrections(“Secretary LeBlanc”), to provide policies and procedures designed to offer “additional guidance about how the Act is intended to operate”(doc. 38–1, p. 1).Therefore, they argue, the Court must consider the regulation in its analysis of the constitutionality of the Act, as “it casts serious doubts on plaintiffs' predictions about the supposedly sweeping scope of the Act's enforcement”(doc. 49, p. 10).Defendants allege that the regulation “makes clear that the Act is not targeted at the sort of general media websites plaintiffs fear it will reach”(doc. 49, p. 10).Defendants strongly urged the Court to consider the regulation in its analysis of the Act under the framework of the First Amendment.

ANALYSIS

The issues presently before the Court are: (1) whether the Plaintiffs have standing to challenge the Act; (2) whether the Act is overbroad and, therefore, violates Plaintiffs' First Amendment rights; (3) whether the Act is void and unenforceable because it is unconstitutionally vague; and (4) if the Court finds that the Act violates Plaintiffs' First Amendment rights, whether the Act's constitutional deficiency is cured by the promulgation of a regulation intended to limit construction and applicability of the legislation(transcript; doc. 48, pp. 1–2; doc. 49, p. 2).

I.Plaintiffs' Standing to Challenge the Act

The Court will first consider Defendants' argument that Plaintiffs' challenges to the Act are speculative and premature (transcript, p. 46:13–19; doc. 49, pp. 1–2).Defendants assert that since “no one has attempted to take advantage of the statute as it is written ..., so it's pure speculation as to what might happen as to John or James Doe”(transcript, p. 21:7–19).Therefore, Defendants contend, it is premature for the Court to consider whether injunctive relief should issue ( Id. at 23:22).However, Plaintiffs assert that “First Amendment standing requirements are considerably more relaxed if there is a substantial chilling effect”( Id.at 25:11–14).Plaintiffs further assert that their First Amendment rights have been chilled because, as mentioned supra,they are afraid to use their personal email accounts and access information websites at work ( Id.at 26:5–17).

“The requirement that a claimant have standing is an essential and unchanging part of the case-or-controversy requirement of Article III.”Nat'l Fed'n of the Blind of Texas, Inc. v. Abbott,647 F.3d 202, 208(5th Cir.2011).“To qualify for standing, a claimant must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant's challenged behavior; and likely to be redressed by a favorable ruling.”Id., at...