Federal District Court Strikes Down Ban on Much Internet Activity by Registered Sex Offenders

A Louisiana statute bans much Internet activity by registered sex offenders who had been convicted of child pornography or other sex crimes involving children (or of video voyeurism); the law, like most other laws dealing with sex offenders, includes within its coverage sex offenders who are no longer in prison or on probation. The law bans “using or accessing of social networking websites, chat rooms, and peer-to-peer networks” by such offenders, unless “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.” And the law defines the prohibited sites very broadly:

(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….

(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.

This blog would therefore qualify as a “chat room,” as would any newspaper site that allows reader comments. Any service that lets people set up their own Web pages would qualify as a “social networking website.”

Last Thursday, a federal district court struck down the law, holding that it was unconstitutionally overbroad. The court therefore did not have to decide whether a law that was more focused on registered sex offenders’ communications to minors, or that were especially likely to be seen by minors rather than by adults, would be constitutional.

The court also rejected, for two reasons, the argument that the exception for any offender who got “permission … from his probation or parole officer or the court of original jurisdiction” narrowed the law sufficiently: First, the law didn’t impose any standards that the permission-granting authority would use. (Such standardless discretion has often been held to be unconstitutional where First Amendment rights are involved.) Second, it isn’t clear how a defendant who isn’t on probation or parole could get permission from the court of original jurisdiction, since some such courts might not (under the law of the jurisdiction to which the court belongs) have the authority to do or say anything more with regard to defendants whose sentences have been completed.

The court’s analysis seems quite right to me. I would think that even narrower restrictions would be unconstitutional as to people who have finished serving their sentences (though the matter isn’t an open and shut, and raises interesting — though imperfect — analogies to the restrictions on the Second Amendment rights of felons and some misdemeanants who have finished serving their sentences). But certainly restrictions that are this broad are unconstitutional.

UPDATE: A lay reader asked what “overbroad” means in this context. Here’s the short answer: In constitutional cases that don’t involve free speech claims, the enforcement of a law can be held unconstitutional only if the challenger’s own conduct (which the law prohibits) is constitutionally protected. A challenger whose conduct is constitutionally unprotected can’t challenge the law on the grounds that the law also bars someone else’s constitutionally protected conduct.

For example, say a statute lets the police search houses with probable cause but without a warrant. Such searches generally violate the Fourth Amendment, but there is an exception for “exigent circumstances,” such as when the police are chasing a fleeing felon. The government searches your house without a warrant, but in a situation where exigent circumstances are present; you sue, claiming the whole statute is unconstitutional. You’ll lose: Even though the law is unconstitutional as applied to someone whose house is searched without exigent circumstances, it’s constitutional as ap-plied to you, since exigent circumstances were present.

In free speech cases, though, you can challenge an entire law on its face, on the grounds that it’s substantially overbroad: If the law unconstitutionally restricts a substantial amount of other people’s speech, the law (and your conviction under it) will be invalidated even if my speech was constitutionally unprotected.

For an example of this, see the animal cruelty video case from a few years ago, United States v. Stevens. The Court did not hold that a ban on dogfighting videos (such as the ones distributed by the defendant in Stevens) would be unconstitutional — the Court reserved judgment on this question. Rather, the Court held that the statute was itself unconstitutional because it reached a substantial amount of protected material, such as depictions of hunting.

Likewise, in this case the law applies to such a wide range of Internet access on defendants’ part that the law on its face is too broad and therefore a violation of the First Amendment. This doesn’t tell us whether a materially narrower law might be constitutional. It only says that this broad law, and others of comparable breadth, are unconstitutional.