U. S. District Court Chief Judge Brian Jackson has issued a final order concerning a Louisiana law that required websites to verify that its users were at least eighteen years old before allowing them access to sexual content. Plaintiffs, who included the Garden District Book Shop, the American Booksellers Association, and the Comic Book Legal Defense Fund, had originally requested a preliminary injuction, which Judge Jackson granted a few months ago. He found 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.”
The state of Louisiana (via the Attorney General’s office) is no longer opposing the plaintiffs’ position that the statute should be declared unconstitutional and has joined with the plaintiffs in a motion for final judgment. Judge Jackson has therefore closed out the matter and given the plaintiffs until August 15, 2017 to apply for attorneys’ fees and other costs.
The case involves Louisiana Revised Statutes 14:91:14 (H.B. 153). Here is the text.
A.
- (1) Any 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.
- (2) The failure to comply with the provisions of Paragraph (1) of this Subsection shall constitute the unlawful distribution of material harmful to minors through the Internet.
- (3) If a person or entity in Louisiana publishes material harmful to minors on the Internet and complies with the provisions of Paragraph (1) of this Subsection, the person or entity shall not be held liable under the provisions of this Section if the person seeking to access the material is under the age of eighteen and falsely acknowledges and attests that he is eighteen years of age or older.
- (4) No Internet service provider, interactive computer service provider as defined by 47 U.S.C. 230(f), or radio or television broadcast licensee of the Federal Communications Commission shall be deemed to be a publisher or distributor of material harmful to minors that is provided by another person.
1) Any 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.
- B. For purposes of this Section:
- (1) “Descriptions or depictions of illicit sex or sexual immorality” includes the depiction, display, description, exhibition, or representation of any of the following:
- (a) Ultimate sexual acts, normal or perverted, actual, simulated, or animated, whether between human beings, animals, or an animal and a human being.
- (b) Masturbation, excretory functions, or exhibition, actual, simulated, or animated, of the genitals, pubic hair, anus, vulva, or female breast nipples.
- (c) Sadomasochistic abuse, meaning actual, simulated, or animated, flagellation or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals, or female breast nipples, or the condition of being fettered, bound, or otherwise physically restrained, on the part of one so clothed.
- (d) Actual, simulated, or animated, touching, caressing, or fondling of, or other similar physical contact with, a pubic area, anus, female breast nipple, covered or exposed, whether alone or between human, animals, or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification.
- (2) “Material harmful to minors” is defined as any digital image, photograph, or video which exploits, is devoted to or principally consists of, descriptions or depictions of illicit sex or sexual immorality for commercial gain, and when the trier of fact determines that each of the following applies:
- (a) The material incites or appeals to or is designed to incite or appeal to the prurient, shameful, or morbid interest of minors.
- (3) “News-gathering organization” means all of the following:
- (a) A newspaper, or news publication, printed or electronic, of current news and intelligence of varied, broad, and general public interest, having been published for a minimum of one year and that can provide documentation of membership in a statewide or national press association, as represented by an employee thereof who can provide documentation of his employment with the newspaper, wire service, or news publication.
- (1) “Descriptions or depictions of illicit sex or sexual immorality” includes the depiction, display, description, exhibition, or representation of any of the following: