Booksellers Challenge Internet Law

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Free speech group claims that a Louisiana law governing online content violates constitutional rights.

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Louisiana Governor Bobby Jindal, although unable to capture the national spotlight during his short-lived run for the Republican presidential nomination last year, has grabbed local headlines for other news. A group of New Orleans-based booksellers and content producers have filed suit against the State, claiming that a bill Jindal signed into law violates their constitutional rights.

The law requires any person or entity publishing “material harmful to minors on the Internet” to verify that any visitor seeking access to the content is eighteen years or older.

It makes it a crime to distribute harmful material to anyone under eighteen, and it backs up its restrictions with fines of up to $10,000. Merely failing to include age verification constitutes an offense under the law, regardless of whether a minor actually visits a website that contains harmful material.

The law defines harmful material to include the representation—display, depiction, or description—of a broad category of “illicit sex or sexual immorality” in mediums including photographs and videos. But it also includes provisions applying to any content that “lacks serious literary, artistic, political or scientific value for minors” or is deemed to appeal to the “prurient, shameful, or morbid interest of minors.”

After Louisiana Representative Timothy Burns filed the bill, the Media Coalition—an association representing the interests and First Amendment rights of content creators and producers—circulated a memo on its website outlining its challenges to the proposed text. The Coalition alleged First Amendment violations on behalf of publishers, booksellers, and others, stating that the law “forces online publishers to act like adult bookstores.”

Soon thereafter, the legislators involved carved out an exception for news or public interest content, including videos and reports. But despite the Media Coalition’s continued challenges to the law, including a veto request, Jindal signed the bill—prompting the Media Coalition,filed joined by local and national chapters of the American Civil Liberties Union, as well as New Orleans-based booksellers and others, to file suit last November.

In their complaint, the challengers alleged constitutional violations on behalf of content creators and producers—including booksellers, magazine publishers, and trade associations, which may offer millions of books for sale online—in addition to individuals the law purports to protect.

They argued that, by prohibiting access for would-be visitors—such as older minors, for whom content is not offensive—and by restricting the types of material displayed on the Internet by content providers, the law impermissibly “chills speech,” in violation of the First Amendment. They sought, among other forms of relief, a preliminary injunction to enjoin enforcement of the bill—that is, a court order that would prohibit the State of Louisiana from enforcing the bill during the course of the litigation.

The State of Louisiana countered these arguments in its opposition papers to the preliminary injunction, asserting that it had a “compelling interest in protecting minors from the harmful distribution of material on the internet,” and that the law was the least restrictive method of doing so.

Both parties presented oral arguments concerning the preliminary injunction motion in the U.S. District Court for the Middle District of Louisiana late last year. In the case’s most recent development, Chief Judge Brian A. Jackson, who presided over the oral arguments, requested that the parties flesh out these arguments by submitting supplemental briefing.

In their supplemental brief, the challengers argued that the law threatens an “irreparable” loss to First Amendment freedom. They further asserted that the law places a substantial burden on them, by requiring that they verify the age of anyone visiting their site, if material found on their site could be considered harmful to minors.

They also claimed that the law is vague and overbroad— thus presenting further constitutional concerns—because it does not sufficiently define what is considered harmful to minors and fails to differentiate between older and younger minors.

Beyond the constitutional problems posed by the law, the challengers emphasized its practical hurdles. They alleged that, to avoid violating the law, booksellers are faced with difficult choices: either restrict their entire site subject to age verification, or review their material to restrict only those books potentially inappropriate for minors. If they were to choose the latter option, they would be faced with either looking at every single book they sell or limiting their online inventory to an amount of books they can actually review.

Each option is untenable, they claimed. At best, it would be burdensome; at worst, it would amount to “massive self-censorship.”

“The law is a serious threat to the First Amendment rights of booksellers and our customers,” stated Tom Lowenburg, co-owner of Octavia Books, one of the plaintiffs in the suit. “Our job is to get customers the books they want, but this law makes it impossible by forcing us to block access to 16- and 17-year-olds who want to browse Young Adult novels and other works that may be inappropriate for younger minors.”

Representative Burns countered in a news article that he drafted the bill to avoid constitutional problems, a sentiment echoed in the State’s supplemental briefing. “I wrote it to be as least restrictive as possible on free speech,” he said.

But the law’s challengers emphasize the extent to which it limits access to content. David Horowitz, executive director of Media Coalition, explained that “the law violates the First Amendment right of booksellers and publishers because it forces them to restrict access of their customers and readers on their online stores to what is acceptable for a 12 year old.”

The parties are currently awaiting a ruling from Judge Jackson.