Why Don't You Take a Seat Away from that Computer?: Why Louisiana Revised Statute 14:91.5 Is Unconstitutional

Author:Eva Conner
Pages:883-922
 
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Why Don’t You Take a Seat Away from that
Computer?: Why Louisiana Revised Statute 14:91.5
Is Unconstitutional
PREFACE
During the 2012 Regular Session, the Louisiana Legislature
amended Louisiana Revised Statutes section 14:91.5.1 This
amendment came in response to Doe v. Jindal, which declared the
2011 version of the statute unconstitutional.2 This Comment was
written in the fall of 2011 and therefore is no longer applicable to
current Louisiana Revised Statutes section 14:91.5.3 Nevertheless,
it is published here because the issues raised by former section
14:91.5 are not unique to that particular statute but instead are
implicated in state laws about sex offenders and social networking
sites around the country.
The Louisiana Legislature made important changes in the 2012
amendment to section 14:91.5. First, the name was changed from
“Unlawful use or access of social media” to “Unlawful use of a
social networking website.”4 Though not a substantive change, it
demonstrates the transition in the law: from originally criminalizing
most Internet access, to now only narrowly criminalizing sex
offenders’ use of traditional social networking websites, such as
MySpace and Facebook.5 That transition was achieved through a
number of changes, which, taken together, likel y render the new
version of Louisiana Revised Statutes section 14:91.5 constitutional.
Second, “intentional use of a social networking website”
replaced “the using or accessing of social networking websites,
chat rooms, and peer-to-peer networks” to describe what
Copyright 2013, by EVA CONNER.
1. LA. REV. STAT. ANN. § 14:91.5 (2012); 2012 La. Sess. Law Serv. Act
205 (H.B. 620) (May 22, 2012) (West).
2. Doe v. Jindal, 853 F. Supp. 2d 596 (M.D. La. 2012).
3. The Editors of the Louisiana Law Review commend this scholarship for
identifying the problems in former Louisiana Revised Statutes section 14:91.5 and
for effecting meaningful legislative re visions to this previously unconstitutio nal
law. While the 2012 amendments to section 14.91.5 resolve many, if not all, of the
constitutional deficiencies highlig hted by this Comment, this scholarship r emains
relevant because of its practical impact on Louisiana law. T he Louisiana Law
Review congratulates the author for contributing to these noteworthy changes and
for providing a constitutional example for o ther states that wish to enact or amend
their laws regulating sex offenders and social networking sites.
4. Compare LA. REV. STAT. ANN. § 14:91.5 (2012), with LA. REV. STAT.
ANN. § 14:91.5 (2011).
5. Compare LA. REV. STAT. ANN. § 14:91.5 (2012), with LA. REV. STAT.
ANN. § 14:91.5 (2011).
884 LOUISIANA LAW REVIEW [Vol. 73
constitutes the crime under the statute.6 By adding an intent
element and by eliminating chat rooms and peer-to-peer networks,
the Legislature greatly narrowed the statute’s Internet coverage.7
Even more important amendments changed the definition of
social networking website. An insertion now declares that a social
networking website is simply a website whose primary purpose is
“facilitating social interaction with other users of the website”;
furthermore, to be a social networking website, the site must allow
users both to create webpages or profiles available to the general
public and to communicate between users using those profiles.8
The 2011 version of Louisiana Revised Statutes section 14:91.5
was much broader, forbidding sex offenders from accessing a
website that met either criteria and including “a forum, chat room,
electronic mail, or instant messaging.”9
Additionally, the new 2012 version of Louisiana Revised
Statutes section 14:91.5 specifically excepts many websites that
were banned in the 2011 version of the statute, including websites
that only offer photo sharing, email, or instant messaging, purely
commercial websites, websites whose primary purpose is to
disseminate news, and websites of government entities.10 Even
more importantly, the restrictions on chat rooms and peer-to-peer
networks were removed in the 2012 revision.11 The removal of
chat room restrictions is the most significant change, as that
subsection banned any website allowing communication between
users—a very broad standard.12
Finally, although the last change to the law is beyond the scope
of this Comment, new Louisiana Revised Statutes section 14:91.5
does not contain the subsection that gave probation officers
discretion to waive any of the requirements of the law.13
These changes to Louisiana Revised Statutes section 14:91.5
likely render the statute constitutional under the Free Speech
grounds addressed in this Comment.14 The new version restricts
6. Compare LA. REV. STAT. ANN. § 14:91.5 (2012), with LA. REV. STAT.
ANN. § 14:91.5 (2011).
7. Compare LA. REV. STAT. ANN. § 14:91.5 (2012), with LA. REV. STAT.
ANN. § 14:91.5 (2011). See also infra Part I.C.
8. Compare LA. REV. STAT. ANN. § 14:91.5 (2012), with LA. REV. STAT.
ANN. § 14:91.5 (2011).
9. Compare LA. REV. STAT. ANN. § 14:91.5 (2012), with LA. REV. STAT.
ANN. § 14:91.5 (2011).
10. Compare LA. REV. STAT. ANN. § 14:91.5 (2012), with LA. REV. STAT.
ANN. § 14:91.5 (2011).
11. Compare LA. REV. STAT. ANN. § 14:91.5 (2012), with LA. REV. STAT.
ANN. § 14:91.5 (2011).
12. Compare LA. REV. STAT. ANN. § 14:91.5 (2012), with LA. REV. STAT.
ANN. § 14:91.5 (2011).
13. Compare LA. REV. STAT. ANN. § 14:91.5 (2012), with LA. REV. STAT.
ANN. § 14:91.5 (2011). See also infra note 77.
14. See infra Part IV.
2013] COMMENT 885
the disallowed websites to traditional social networking sites,
which is likely narrowly tailored to the significant government
interest of protecting children from sex offenders on the Internet.15
However, despite the changes to Louisiana Revised Statutes
section 14:91.5, this Comment remains relevant to many other
laws across the country, demonstrating that a constitutional avenue
exists to protect children from sex offenders online.
INTRODUCTION
You went to high school with John Doe. You remember your
senior year when John got in trouble because his girlfriend was 16
and he was 18, but that was a long time ago. Last weekend, he was
your cashier at the grocery store. You asked John how he was doing.
He told you that because a new law had been passed in August of
2011, he could not use the Internet anymore. He had to close his
Facebook account, which he had been using for the past three years
to communicate with his cousins who live in California. John had
been very involved with politics in his hometown but could no
longer access the candidates’ websites or follow them on Twitter.
He could not get his news online anymore, but occasionally he still
caught major stories on the local channels at five o’clock. He could
not see the pictures of his baby niece on his sister’s photo-sharing
website. John had to give up on his fantasy football team. He was
fired from his job as a computer technician and now works as a
cashier at the grocery store; it was the only job that he could find
without using any Internet career-searching resources. His pay was
more than halved.
In the past two decades, laws targeting sex offenders have swept
swiftly across America.16 Very few issues in politics are both as
popular and as nondivisive as the protection of children from sexual
predators.17 In the same time frame, the popularity of the Internet
has skyrocketed.18 Social networking sites have grown even faster
than the Internet as a whole, and Americans now spend almost a
quarter of their Internet time on these sites.19 In less than a
15. See infra Parts IV, V.
16. See discussion infra Part I.
17. Brian P. LiV ecchi, “The Least of These:” A Constitutional Challenge to
North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18, 33 N.C.
CENT. L. REV. 53, 55 (2010).
18. United States of America Internet Usage and Broadband Usage Report,
INTERNET WORLD STATS, http://www.internetworldstats.com/am/us.htm (last
visited Oct. 12, 2011).
19. Sarah Kessler, Americans Spend 23% of Internet Time on Social
Networks, SOC. NETWORKING WATCH (Sept. 13, 2011), http://www.social

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