STATE OF LOUISIANA v. IN RE BRITTANY MABENS (2017)

Relator seeks review of the trial court's August 12, 2016 ruling which denied her motion to quash bill of information. For the following reasons, we grant the writ application and reverse the trial court's ruling.

In 2009, when relator was 18 years of age, she was charged with one count of indecent behavior with juveniles, a violation of La. R.S. 14:81. There is nothing contained in the record that indicates that the offense involved a computer, the internet or any kind of social networking website. Relator pled guilty to the charge and received a sentence of 3 years probation, which she successfully completed in 2012; however, in accordance with La. R.S. 15:544, she was to comply with sex offender requirements until January 13, 2025.

On March 31, 2015 relator was charged with one count of unlawful use of a social networking website (creating a Facebook account) a violation of La. R.S. 14:91.5. Relator then filed a motion to quash the bill of information maintaining that La. R.S. 14:91.5 (enacted in 2011) is unconstitutional, as the language in the statute is overbroad and vague. She also argued that the statute criminalized free speech which is protected by the first amendment and that it violated ex post facto principles. The trial court denied the motion to quash and this writ ensued.

The statute at issue, La. R.S. 14:91.5, entitled “Unlawful use of a social networking website,” provides for a sentence for a first conviction of “the crime of unlawful use of a social networking website” of a fine of “not more than ten thousand dollars” and imprisonment “with hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence.” La. R.S. 14:91.5 C(1). The statute defines the unlawful use of a social networking website as follows:

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.

La. R.S. 14:91.5 A(1). It then defines the social networking websites as:

․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.1

La. R.S. 14:91.5 B(2)(a). The term “ ‘[u]se’ 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.” La. R.S. 14:91.5 B(3).

A previous version of this statute was found unconstitutional in Doe v. Jindal, 853 F. Supp. 2d 596 (M.D. La. 2012).

This Court stayed this writ application on January 19, 2017, in light of the United States Supreme Court grant of a writ of certiorari in State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015), cert. granted sub nom. Packingham v. N. Carolina, 137 S.Ct. 368 (U.S. 2016), as that case involved a North Carolina statute similar to the statute at issue herein. On June 19, 2017, the United States Supreme Court rendered its opinion finding that the North Carolina statute is unconstitutional. Packingham v. North Carolina, ---U.S.---, ---S.Ct.---, 2017 WL 2621313 (2017).

The statute under consideration in Packingham 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.” Id., 2017 WL 2621313, *3 (citing N.C. Gen. Stat. Ann. §§ 14–202.5(a), (e) (2015)). In discussing the statute, the Supreme Court noted the following:

A “commercial social networking Web site” is defined as a website that meets four criteria. First, it “[i]s operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site.” § 14-202.5(b). Second, it “[f]acilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.” Ibid. Third, it “[a]llows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the Web site.” Ibid. And fourth, it “[p]rovides users or visitors ․ mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.” Ibid.

Id., --- U.S. at ---, --- S.Ct. at --- , 2017 WL 2621313, *3.

The North Carolina statute also included two exemptions: websites that “[p]rovid[e] only one of the following discrete services: photo-sharing, electronic mail, instant messenger, or chat room or message board platform” or websites that “have as their ‘primary purpose the facilitation of commercial transactions involving goods or services between [their] members or visitors.’ ” Id., --- U.S. at -- -, --- S.Ct. at --- , 2017 WL 2621313, *3 (quoting § 14-202.5(c)(1) and (c)(2)).

After a discussion of First Amendment principles (“that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more”), the Court found that “[e]ven making the assumption that the statute is content neutral and thus subject to intermediate scrutiny, the provision cannot stand.” Id. at *6. “[T]o survive intermediate scrutiny, a law must be ‘narrowly tailored to serve a significant governmental interest’ ” and “must not ‘burden substantially more speech than is necessary to further the government's legitimate interests.’ ” Id. (quoting McCullen v. Coakley, 573 U.S. ---,---, 134 S.Ct. 2518, 2534, 189 L.Ed.2d 502 (2014) (internal quotation marks omitted)).

While the Court recognized that sexual offenses against children are unequivocally the most serious crimes, and a legislature may pass laws to protect children and other sexual crimes victims, it found that the statute is worded so broadly that it could encompass websites other than social media websites:

It is necessary to make two assumptions to resolve this case. First, given the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com. See post, at 6-9; see also Brief for Electronic Frontier Foundation 24-27; Brief for Cato Institute et al. as Amici Curiae 10-12, and n. 6. The Court need not decide the precise scope of the statute. It is enough to assume that the law applies (as the State concedes it does) to social networking sites “as commonly understood”- that is, websites like Facebook, LinkedIn, and Twitter. See Brief for Respondent 54; Tr. of Oral Arg. 27.

Second, this opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue. Specific criminal acts are not protected speech even if speech is the means for their commission. See Brandenburg v. Ohio, 395 U.S. 444, 447-449, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam ). Though the issue is not before the Court, it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor. Cf. Brief for Respondent 42-43. Specific laws of that type must be the State's first resort to ward off the serious harm that sexual crimes inflict. (Of importance, the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court.)

Id. (emphasis added).

Even taking into consideration the State's legitimate interest, however, the Packingham Court found that the North Carolina statute included “a prohibition unprecedented in the scope of First Amendment speech it burdens” because by prohibiting sex offenders from using social media, “North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” Id. at *7. The Court further found that social media websites “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard” because “[t]hey allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’ ” Id. (quoting Reno, 521 U.S., at 870, 117 S.Ct. 2329).

Accordingly, the Court unanimously held that “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights”, finding it particularly “unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.” Id. With regard to the State's interest in protecting victims, the Court found that the State failed to meet its burden of demonstrating that “this sweeping law is necessary or legitimate to serve that purpose.” Id. The Court, thus, concluded that because North Carolina violated the “well established” principle that “the Government ‘may not suppress lawful speech as the means to suppress unlawful speech,’ ” the North Carolina statute “must be held invalid.” Id. at *8 (quoting Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002)).

We see no material difference between the North Carolina statute at issue in Packingham and the statute at issue in this writ application, La. R.S. 14:91.5. Accordingly, and pursuant to the clear language and rationale of the Packingham decision, we find La. R.S. 14:91.5 to be unconstitutional. We therefore reverse the trial court's ruling and grant Relator's motion to quash.

New Orleans, Louisiana this _______ day of July, 2017.

JUDGE DANIEL L. DYSART

JUDGE ROLAND L. BELSOME

JUDGE MARION F. EDWARDS, PRO TEMPORE

FOOTNOTES

1.   The statute also provides that the term “social networking website” does not include “any of the following: (i) An Internet website that provides only one of the following services: photo-sharing, electronic mail, or instant messenging. (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. La. R.S. 14:91.5 B(2)(b).