Court Strikes Down Louisiana's Attempt To Regulate Online Content 'For The Children'

A law enacted "for the children" in Louisiana has been blocked by a federal judge for being -- like almost anything enacted "for the children" -- overbroad, badly written, and generally inconsiderate of protected expression.

The ACLU summed up the law this way after it was passed late last year.

The law makes it a crime to publish anything on the Internet that could be deemed "harmful to minors" without verifying the age of everyone who wants to see it. If you are in Louisiana, and publish anything on the Internet, you have to either make sure that none of that content could be considered harmful to a minor of any age - a high bar, considering a lot of constitutionally protected speech might not be fit for an 8-year-old - or install an age-verification screen asking if the viewer is 18 or over before allowing access.

If you don't, it's a crime.

As the ACLU pointed out then, the law was so broadly written, it could be read as covering posts made to social media accounts -- platforms where users have no way of controlling who views their posts. To steer clear of potential violations, some social media users may have been better off withholding anything that could possibly be deemed unacceptable.

The most likely recipients of extra law enforcement attention due to the new law were the state's many booksellers, most of whom sell books online. Smaller sellers would have been forced to implement age verification procedures for their websites and somehow determine what content was acceptable for minors and segregate it accordingly. The simplest solution would be to simply "age wall" all books and treat all purchasers as though they were buying "Fifty Shades of Grey," rather than, say, "Clifford, the Big, Red Dog."

The ACLU joined two Louisiana bookstores in challenging the terrible law and, only a few months after its passage, have received an injunction blocking its enforcement. The court decision spends several paragraphs discussing the numerous flaws in the law's wording, many of which could result in a chilling effect on free speech and act as indirect (and perhaps unintentional) prior restraint.

Criminal statutes, such as 14:91.14, must be defined "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). The ill-defined terms in 14:91.14 do not adequately notify individuals and businesses in Louisiana of the conduct it prohibits, which creates a chilling effect on free speech. For example, despite the array of definitions in Section (B) of the statute, it does not define "for commercial gain" or "publish."

The State contends that the phrase "for commercial gain," which is embedded in the definition of "material harmful to minors," means the statute applies to material published on the Internet for commercial gain. (Doc. 41 at p. 9). However, under a similar criminal statute, La. Stat. Ann. 14:91.11,7 a Louisiana court held that the term "for commercial gain"-which was similarly embedded in that statute's definition of "material harmful to minors"-refers to the "creation or production of the material involved and not to the nature of the transaction." [...] Thus, the State's proposed definition of the term "for commercial gain" completely ignores a Louisiana court's explicit interpretation of that term.

The court also has a problem with the State's inability to define what's encompassed by the word "publish."

The State also contends that the word "publish" is synonymous with the word "upload." The State offers no competent support for this contention. The State only provides a declaration from the Senior Systems Administrator for the Louisiana Department of Justice-who is not a member of the Louisiana Legislature or qualified as an expert-to advise as to his personal interpretation of the term. The meaning of "publish," as used in this statute, is vague as written and could include uploading or displaying content that is harmful to minors. Absent an explicit definition in the statute, the Court and the public can only speculate as to its meaning and intended application.

Because the State passed a badly and vaguely-written law, it has no one but itself to blame for its unintended consequences.

To avoid the stigma of a criminal prosecution, Plaintiffs, and those similarly situated, will be inclined to either broadly apply the age verification process well beyond what is necessary or refrain from publishing any material that arguably falls within the confines of the statute. A possible consequence of the chill caused by 14:91.14 is to drive protected speech from the marketplace of ideas on the Internet.

As the court sees it, the booksellers and those similarly situated have two choices when complying with this law -- neither of which are acceptable under the First Amendment: either deploy overly-broad age verification processes, which could prevent site users from accessing information, or simply stop "publishing" anything that might be deemed "harmful to minors."

The State can still appeal this decision, but it would likely be a waste of time. Legislators may try to rewrite the law, which would be preferable rather than trying to keep it alive in its current form. But a better solution would simply be to strike the law from the books and accept the fact that it's almost impossible to "save" the "children" from "harmful content" without punching holes in First Amendment.

There are plenty of "content filters" already in place, standing between minors and "harmful material." They're called "parents." And even if they're not perfect, they're at least as effective as this law would be, what with minors still being able to access content not hosted by Louisiana entities or lying about their age to content filtering systems.

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