Court Strikes Down Virtual Internet Ban for Sex Offenders

By Eugene Volokh

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.