A Louisiana law passed during the state’s 2015 legislative session makes it a crime for any individual in Louisiana to publish material on the Internet that may be “harmful to minors” without an age verification screen. On November 4, 2015, the ACLU, the ACLU of Louisiana, and Dentons U.S. LLP, filed a lawsuit challenging the constitutionality of the law on behalf of a coalition of booksellers, magazines, comic book retailers, and their readers.
The Louisiana law, H.B. 153, requires that “[a]ny person or entity in Louisiana that publishes material harmful to minors on the Internet shall, prior to permitting access to the material, require any person attempting to access the material to electronically acknowledge and attest that the person seeking to access the material is eighteen years of age or older.” The failure to do so is a crime punishable by a $10,000 fine.
Under the law, a broad range of material that has serious literary, artistic, political or scientific value for some 16- and 17-year olds would be placed behind an age verification screen simply because some might consider it harmful to any minor. This could includematerials about sexuality and reproductive health,which older minors have a constitutional right to access. Some Louisiana websites — for example, Louisiana booksellers who use online book databases with an inventory of millions of books — may respond to the law by simply placing an age verification screen on the front of their entire website, because it would be too burdensome to evaluate every single image or text on their site. That could result, for example, in the inability of a 17-year-old to buy a copy of Little House on the Prairie from a Louisiana bookstore’s website for herself or a younger sibling.
Our clients include booksellers, magazines, and members of the American Booksellers Association and the Comic Book Legal Defense Fund. They all offer, display, and sell a broad range of material protected by the First Amendment, including artistic, historical, and newsworthy materials.
While the intent of the law is to protect minors from seeing material that is harmful to them, it is a futile attempt, because the vast majority of material on the Internet is published outside Louisiana and accessible to any Louisiana minor. The law will have virtually no effect on Louisiana minors’ ability to access “harmful” content, and other, less restrictive alternatives exist that could accomplish the same goals.
On October 16, 2016, a federal judge signed an order permanently preventing Louisiana from enforcing the law.
Judge Brian A. Jackson had previously granted a preliminary injunction in the case. The state then determined that it would not defend the constitutionality of the law and agreed to the entry of a permanent injunction. The judge signed the permanent injunction Friday.
To comply with the law had it not been enjoined, booksellers and publishers would have had either to place an age confirmation button in front of their entire websites, thereby restricting access to materials that may be appropriate for all ages, or to attempt to review all of the books or magazines available at their websites and place an age confirmation button in front of each individual page that might be inappropriate for any minor.
The federal district court found in its preliminary injunction ruling that “[t]he ill-defined terms in [H.B. 153] do not adequately notify individuals and businesses in Louisiana of the conduct it prohibits, which creates a chilling effect on free speech.”