Louisiana Criminal Defense Topics: Free Speech Rights and Being Charged with a Violation of La. R.S. 14:91.5, Unlawful Use of a Social Networking Website.

La. R.S. 14:91.5 is unconstitutional on its face because it violates the Free Speech Clause of the Louisiana Constitution (Article I, Section III) and the Free Speech Clause of the United States Constitution (First Amendment). La. R.S. 14:91.5 is a Louisiana statute still in effect that criminalizes the use of a social networking website by sex offenders. Even the First Amendment of the United States Constitution and Article I, Section III of the Louisiana Constitution both protect registered sex offenders in having the right to engage in public discourse and speech. 

The statute at issue, La. R.S. 14:91.5, reads as follows:

 “§91.5. Unlawful use of a social networking website
 A. The following shall constitute unlawful use of a social networking website:
(1) The intentional use of a social networking website by a person who is required to register as a sex offender and who was convicted of R.S. 14:81 (indecent behavior with juveniles), R.S. 14:81.1 (pornography involving juveniles), R.S. 14:81.3 (computer-aided solicitation of a minor), or R.S. 14:283 (video voyeurism) or was 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 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. For purposes of this Section:
 (1) "Minor" means a person under the age of eighteen years.
(2)(a) "Social networking website" means an Internet website, the primary purpose of which is facilitating social interaction with other users of the website and has all of the following capabilities:
(i) Allows users to create web pages or profiles about themselves that are available to the general public or to any other users.
(ii) Offers a mechanism for communication among users.

(b) "Social networking website" shall not include any of the following:
(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.
(3) "Use" shall mean to create a profile on a social networking website or to contact or attempt to contact other users of the social networking website.
 C.(1) Whoever commits the crime of unlawful use of a social networking website 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 of a social networking website, 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.
 Acts 2011, No. 26, §1; Acts 2012, No. 205, §1”
 
In 2011, Louisiana enacted a statute making it a felony for a class of registered sex offenders to engage in “[t]he intentional use of a social networking website by a person who is required to register as a sex offender and who was convicted of R.S. 14:81 (indecent behavior with juveniles), R.S. 14:81.1 (pornography involving juveniles), R.S. 14:81.3 (computer-aided solicitation of a minor), or R.S. 14:283 (video voyeurism) or was convicted of a sex offense as defined in R.S. 15:541 in which the victim of the sex offense was a minor.” La. R.S. 14:91.5(A)(1). “Use” under the statute “[means] to create a profile on a social networking website or to contact or attempt to contact other users of the social networking website.” La. R.S. 14:91.5(B)(3).

A “social networking website” is defined as “an Internet website, the primary purpose of which is facilitating social interactions with other users of the website” and meets two capabilities.  First, the website must “[allow] users to create web pages or profiles about themselves that are available to the general public or to any other users.” La. R.S. 14:91.5(B)(2)(a)(i). Second, the website must “[offer] a mechanism for communication among users.” La. R.S. 14:91.5(B)(2)(a)(ii).
The statute includes four exceptions. First, the statute does not reach websites that “[provide] only one of the following services:  photo-sharing, electronic mail, or instant messaging.” La. R.S. 14:91.5(B)(2)(b)(i). Second, the statute does not reach websites for which “the primary purpose of which is the facilitation of commercial transactions involving goods or services between its members or visitors.”  La. R.S. 14:91.5(B)(2)(b)(ii). Third, the statute does not reach websites for which “the primary purpose of which is the dissemination of news.” La. R.S. 14:91.5(B)(2)(b)(iii). Fourth, the statute does not reach websites “of a governmental entity.” La. R.S. 14:91.5(B)(2)(b)(iv).

La. R.S. 14:95.1 punishes the “use” of a social networking website and arguably can be construed as punishing only conduct; however, the “use” of a social networking website like Facebook is almost always as a means of expression, as every Facebook user knows and as is common knowledge. Facebook users invariably comment and post on what other active users do as well as read content posted by others. In fact, the whole premise of Facebook is built around interaction with other “friends” and members of the public in an online forum. The same argument can be made about similar social media sites Instagram, Twitter, etc. Undoubtedly, La. R.S. 14:91.5 proscribes a substantial amount of constitutionally protected expression and conduct.

“[T]he sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002). A legislature “may pass valid laws to protect children” and other victims of sexual assault “from abuse.” See id., at 245; accord, New York v. Ferber, U.S. 747, 757 (1982). However, the assertion of a valid governmental interest “cannot, in every context, be insulated from all constitutional protections.” Stanley v. Georgia, 394 U.S. 557, 563 (1969). It is well established that, as a general rule, the Government “may not suppress lawful speech as the means to suppress unlawful speech.” Ashcroft v. Free Speech Coalition, U.S., at 255. 
While enacted with good intentions, La. R.S. 14:95.1 invariably suppresses a substantial amount of lawful speech and conduct in an effort to suppress unlawful speech and conduct. In fact, La. R.S. 14:95.1 criminalizes in a blanket fashion all use of social networking websites by a certain class of sex offenders with no regard to the type of use. In doing so, La. R.S. 14:91.5 does not even purport to have a pretense of “narrow tailoring” of the statute’s prescribed conduct to the government’s legitimate interest in protecting children. The statute arbitrarily burdens all registered sex offenders within a class by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal. With one overbroad stroke, Louisiana prevents access and use to what for many people is a principal source for knowing current events, checking ads for employment, conducting business, speaking and listening, and otherwise exploring the vast realms of human thought and knowledge.

Fortunately, although Louisiana Revised Statute 14:91.5 is still in effect, the United States Supreme Court has already addressed the crux of the issue presented in this blog post in a similar case. In Packingham v. North Carolina, 137 S.Ct. 1730, 198 L.Ed.2d 273 (2017), the United States Supreme Court unanimously reversed, in an 8-0 decision on First Amendment grounds, a conviction of a registered sex offender under a North Carolina law that made it a felony for a registered sex offender to access a commercial social networking web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal web pages. In Packingham, the petitioner was convicted for having used Facebook with no allegation that he used the website to facilitate the sexual abuse of any children or anyone for that matter. Id. 
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La. R.S. 14:91.5 and the North Carolina statute at issue in Packingham are similar in so many ways that the same rationale employed in Packingham to strike down the North Carolina statute can easily be employed to strike down La. R.S. 14:95.1. If you or someone you know has been unlawfully arrested under La. R.S. 14:91.5, contact a competent attorney who understands the constitutional dimensions of La. R.S. 14:91.5 and can help you fight back against government overreach. Do not let your constitutional rights be violated.