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

from the baby-proofing-the-world dept

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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Comments on “Court Strikes Down Louisiana's Attempt To Regulate Online Content 'For The Children'”

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Robert says:

Re: Mass Censorship

If any of this were in any way genuine, What they would do is create an internet for children ie linking schools and students together with teachers, a safe internet.
Limited advertisements, quality content and unlicensed adults not allowed.
Of course that is not the intent, the intent is the 20 century media model, no money, no access and the silencing of the majority.

William H. Taft says:

Re: Re:

It’s not about “the children.” What this bill is really about is having the ability to arbitrarily censor content in the name of protecting kids. Nothing more, nothing less.

Freedom of expression in this country has become an endangered species- a few more legislative initiatives and it will be extinct. And don’t be smug UK, AU, and Eropean readers- your rights to freedom of expression are in no better shape and, arguably, in even more dire straights.

John Fenderson (profile) says:

Re: Re:

Heh. Whenever I am faced with an age question, I try to claim that I’m 200 years old.

This is a habit that carried over from when companies first started showing up on the web. They would routinely require you to fill out demographic data to use their sites. So, as a matter of principle, I’m lie and claim to be some variation of a 200 year old black woman with 30 children.

That Anonymous Coward (profile) says:

And now these politicians have played the cards well.

Introduce stupid bill that is clearly illegal, add think of the children get public acclaim.
Get challenged by any group, who can be easily demonized, over the illegality.
Issue soundbites about how you will fight to protect the children against these threats no matter what.
Waste millions in taxpayer dollars fighting a losing cause, slash funding for programs in desperate need to cover costs.
Issue more soundbites, threatening to appeal and careful invoke the almighty to keep the public riled up and trigger the ‘they hate us for our faith’ thinking.
Lose even bigger.
Invoke the ‘federal overreach’ card.
Ensure staying in power through the next election cycle, while the voters shift the blame for failing infrastructure onto the Feds ignoring the millions paid (some to cronies) fighting for an impossible & illegal law.

Anonymous Coward says:

Must be Repeated

Just like “William H. Taft” said in a post above.

This is not and will never be about the Children. It is only about getting censorship put in place. Politicians know that once you get even a little toe in the door it is only a matter of time before the entire fucking circus is inside & kicking every wall down!

This is one of those things that has to be repeated ad nauseam. Once the politicians are tired of hearing about it they will give up… for a little while until we have to do this all again!

Anonymous Coward says:

This law was a beginning.

Like so many other laws, I suspect that this one is no different in that it is not enacted to be used in its current form, but to make a crack that can be widened into something bigger that has even broader implications.
It is hard not to imagine that in a year or so, the lawmakers will arrive at the conclusion that picking your own birthyear is no feasible way to determine age, and will want to make a new system to more accurately determine who visits what.
If laws like this are allowed to continue, then at some point they will then start demanding social security numbers or something like it.

I really hate to sound so paranoid, but these last 15 years has made me sceptical of everything being decided for “the good of the people”.

Anonymous Coward says:

Age Verification considered harmful

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.

My age verification method could be considered “harmful to minors” because it prevents them from seeing constitutional’s permitted speech.

So I installed an age verification method to prevent minors from accessing it.

… which was itself “harmful to minors”, so I installed an age verification method…

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