OPINION1

BRIAN A. JACKSON, Chief Judge.

Plaintiffs, John Doe and James Doe, filed suit against Defendants, James D. Caldwell, Jr., James M. LeBlanc, Hillar C. Moore, III, and John Phillip Haney, asserting that Louisiana Revised Statute 14:91.5 ("the Act") is unconstitutional, and they seek declaratory and injunctive relief against its enforcement. A bench trial was held on November 2, 2011.2 The parties have filed pre-trial briefs (docs. 37 and 38), and post-trial briefs (docs. 48 and 49). Jurisdiction is based on 28 U.S.C. § 1331.

BACKGROUND

On June 14, 2011, Louisiana Governor Bobby Jindal signed into law LSA-R.S.14:91.5, "Unlawful use or access of social media" (doc. 1, ¶ 8). The Act took effect on Monday, August 15, 2011 (doc. 1, ¶ 15). Pursuant to R.S.14:91.5, registered sex offenders who were previously convicted of crimes involving minors or juveniles are prohibited from "using or accessing of social networking websites, chat rooms, and peer-to-peer networks." R.S.14:91.5(A)(1). The Act does not define "using" or "accessing," but defines "social networking website," "Chat room," and "Peer-to-peer network" broadly. R.S. 14:91.5(c)(1)-(4). Both Plaintiffs in this case are registered sex offenders, and both are subject to the proscriptions of the Act,3 which reads:

Plaintiffs allege that the Act is facially overbroad and unconstitutional in that it significantly infringes on their First Amendment rights, as the Act will not only ban registrants from accessing Facebook and MySpace, but will also "make it a felony for registrants to browse the rest of the Internet" (doc. 1, ¶ 13). Plaintiffs further allege that, pursuant to the Act, they will be banned from accessing, inter alia, NOLA.com, CNN.com, FoxNews.com, ESPN, BBC or Reuters, NYTimes.com, Politico.com, Newsweek, The Economist, National Geographic, YouTube, Getagameplan.org (Louisiana's official hurricane preparedness website), Gmail, Yahoo, Hotmail, AOL, Linkedln, Monster, USAJOBS.gov (the federal government's employment database), eBay, Zagat, Amazon, because those websites "offer a mechanism for communication among users" in the form of comments and content forwarding (doc. 1, ¶ 14(a); R.S. 14:91.5(C)(3)(b)).4 Plaintiffs specifically assert that:

(Transcript, p. 26:5-17). Plaintiffs further submit that the Act violates the Due Process clause of the Fourteenth Amendment, which protects the public from vague criminal statutes (doc. 37, p. 3).

Defendants assert that Plaintiffs have never attempted to avail themselves of the exemption provision of the Act, which is featured in R.S. 14:91.5(B) (doc. 49, p. 9). That section provides:

Defendants, therefore, argue that Plaintiffs "have no way of knowing whether the Act would pose any of the problems their First Amendment claim is based upon (e.g. prohibiting access to email and safety information)" (doc. 49, p. 9).

Defendants further assert that they have submitted a "Department Regulation" ("the regulation") (doc. 38-2), promulgated by defendant, James M. LeBlanc, Secretary of the Louisiana Department of Public Safety and Corrections ("Secretary LeBlanc"), to provide policies and procedures designed to offer "additional guidance about how the Act is intended to operate" (doc. 38-1, p. 1). Therefore, they argue, the Court must consider the regulation in its analysis of the constitutionality of the Act, as "it casts serious doubts on plaintiffs' predictions about the supposedly sweeping scope of the Act's enforcement" (doc. 49, p. 10). Defendants allege that the regulation "makes clear that the Act is not targeted at the sort of general media websites plaintiffs fear it will reach" (doc. 49, p. 10). Defendants strongly urged the Court to consider the regulation in its analysis of the Act under the framework of the First Amendment.

ANALYSIS

The issues presently before the Court are: (1) whether the Plaintiffs have standing to challenge the Act; (2) whether the Act is overbroad and, therefore, violates Plaintiffs' First Amendment rights; (3) whether the Act is void and unenforceable because it is unconstitutionally vague; and (4) if the Court finds that the Act violates Plaintiffs' First Amendment rights, whether the Act's constitutional deficiency is cured by the promulgation of a regulation intended to limit construction and applicability of the legislation (transcript; doc. 48, pp. 1-2; doc. 49, p. 2).

I. Plaintiffs' Standing to Challenge the Act

The Court will first consider Defendants' argument that Plaintiffs' challenges to the Act are speculative and premature (transcript, p. 46:13-19; doc. 49, pp. 1-2). Defendants assert that since "no one has attempted to take advantage of the statute as it is written ..., so it's pure speculation as to what might happen as to John or James Doe" (transcript, p. 21:7-19). Therefore, Defendants contend, it is premature for the Court to consider whether injunctive relief should issue (Id. at 23:22). However, Plaintiffs assert that "First Amendment standing requirements are considerably more relaxed if there is a substantial chilling effect" (Id. at 25:11-14). Plaintiffs further assert that their First Amendment rights have been chilled because, as mentioned supra, they are afraid to use their personal email accounts and access information websites at work (Id. at 26:5-17).

"The requirement that a claimant have standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Nat'l Fed'n of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202, 208 (5th Cir.2011). "To qualify for standing, a claimant must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant's challenged behavior; and likely to be redressed by a favorable ruling." Id., at 208-209. The Fifth Circuit has noted that, for a plaintiff to prove an injury in fact sufficient to raise a First Amendment facial challenge, a plaintiff must demonstrate a "serious interest in acting contrary to a statute." Id., at 209.

The Fifth Circuit has also recognized that, although facial challenges are "generally disfavored," there are "concerns in the First Amendment context that are weighty enough to overcome our well-founded reticence regarding facial challenges." Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 660 (5th Cir. 2006) (quoting, Sabri v. United States, 541 U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004)).6 The Fifth Circuit in Carmouche further noted that "the First Amendment challenge has unique standing issues because of the chilling effect, [and] self-censorship." Id. (quoting, Dombrowski v. Pfister, 380 U.S. 479, 486-87, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965)).7 Specifically, the Supreme Court has pronounced that "in the First Amendment context, litigants are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383, 392-93, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988). Moreover, controlling precedent of the Fifth Circuit establishes that "a chilling of speech because of the mere existence of an allegedly vague or overbroad statute can be sufficient injury to support standing." Carmouche, 449 F.3d at 660.8

Accordingly, Plaintiffs, if their interpretation of the statute is correct, must implement significant compliance measures or risk criminal prosecution. Plaintiffs assert that their self-censorship of internet activity in light of the Act has caused a substantial chilling effect on their First Amendment rights. See, supra p. 602. The Court, therefore, concludes that Plaintiffs' challenges to the Act are neither premature nor speculative, and, thus, Plaintiffs have standing to pursue their claims.

II. Plaintiffs' Facial Challenge of Overbreadth

Plaintiffs assert that the Act is "facially overbroad because it criminalizes substantial amounts of protected speech in addition to whatever criminal activity it purports to restrict" (doc. 2-1, p. 6). Plaintiffs further assert that, because key terms are defined imprecisely or not at all, the Act is "unintelligible to the public, unenforceable by police and prosecutors and uninterpretable by the judiciary" (doc. 2-1, p. 3).

The First Amendment prohibits any law that abridges freedom of speech. The Supreme Court has held that "a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577 at 1587, 176 L.Ed.2d 435 (2010). In the case at hand, all parties agree that the state has a compelling and legitimate interest in keeping sex offenders from websites where minors congregate, and the Court agrees.9 However, Plaintiffs submit that the Act is facially overbroad because it involves a greater intrusion on Plaintiffs' First Amendment rights than is reasonably necessary in light of the State's legitimate interest in protecting minors. Moreover, at trial, Defendants conceded that the Act, as written, could be "open" to an interpretation that would ban Plaintiffs from access to basic newspaper websites (transcript, pp. 19:22-25, 20:1-17). However, Defendants defend the Act by deferring to the proffered regulation.

The Supreme Court in Stevens explained that the "first step in an overbreadth analysis is to construe the challenged statute." 130 S.Ct. at 1588. Having carefully considered the Act in light of the instruction provided by the Supreme Court in Stevens, this Court construes the Act to impose a sweeping ban on many commonly read news and information websites, in addition to social networking websites such as MySpace and Facebook.10 Additionally, the Court construes the offense as completed once a user accesses the website — whether intentionally or by mistake.11 The purported definition of "Chat room" is particularly problematic, as it appears to ban an extensive array of websites — including the website for this Court.12 Therefore, those seeking to comply with the law face confusion as to which websites they are prohibited from accessing.

Provision B of the Act exempts offenders who obtain "permission" to access websites from their "probation or parole officer or the court of original jurisdiction."13 However, the Act does not define the standards to be used in evaluating the requests for an exemption. Moreover, the Act does not instruct offenders who are not under supervision how to obtain permission or otherwise avail themselves of the exemption.14

The requirement that an offender who is no longer on court supervision following the successful completion of probation or supervisory release return to "the court of original jurisdiction" for an exemption presents fundamental jurisdictional concerns. The Supreme Court has repeatedly instructed that "[l]n origin and design, federal courts are courts of limited jurisdiction; they exercise only the authority conferred on them by Art. Ill and by congressional enactments pursuant thereto." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986); see also DK Joint Venture 1 v. Weyand, 649 F.3d 310, 319 (5th Cir.2011). "It is to be presumed that a cause lies outside this limited jurisdiction...." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Del-Ray Battery Co. v. Douglas Battery Co., 635 F.3d 725, 730 (5th Cir.2011). A district court may not exercise jurisdiction under Article III, § 2 of the Constitution after a criminal defendant has served the imposed term of imprisonment and corresponding period of supervision, as the defendant has "no concrete and continuing injury," and there is no case or controversy. Although it may be the court of original jurisdiction, as mentioned in the exemptions provision, a federal district court would not retain jurisdiction over a criminal defendant once that defendant has completed the sentence of imprisonment and any required supervision. Moreover, a state cannot create jurisdiction for federal courts or for courts in other states. Therefore, no adequate reading of the exemptions clause would render the Act constitutional.

There can be no doubt that the state has a wholly legitimate interest in protecting children from sex offenders online.15 However, the state's interests "can [only] be served adequately by a narrowly drawn statute tailored precisely toward the conduct the [state] wishes to proscribe." Hill v. City of Houston, 789 F.2d 1103, 1113 (5th Cir.1986). In its current form, the Act is not crafted precisely or narrowly enough — as is required by constitutional standards — to limit the conduct it seeks to proscribe. Accordingly, on its face, and without considering the regulation, the Act is substantially overbroad and, therefore, invalid under the First Amendment.

III. Void for Vagueness Doctrine

The Court is required to consider whether the Act fails to provide people of ordinary intelligence fair notice of what conduct it prohibits. To avoid the chilling effect a vague law might have on speech, an act is void for vagueness when it fails to give persons reasonable notice of what is prohibited. U.S. v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).16 The Supreme Court has held that:

Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (internal citations omitted).

As mentioned supra, the Act does not clarify which websites are prohibited. As a result, Plaintiffs assert, and the State does not dispute, that they have refrained from accessing many websites that would otherwise be permissible for fear that they may unintentionally and unknowingly violate the law. Although the Act contains a section that offers definitions of selected key phrases, such definitions are insufficiently defined, considering the criminal sanctions imposed in the legislation. Accordingly, the Court finds the Act to be unconstitutionally vague and, thus, unenforceable.

IV. Limiting Instruction

A law is not invalid for overbreadth where it is "possible, applying well-established principles of statutory construction, for us to construe it narrowly so that it does not forbid protected speech."17 Hill v. City of Houston, 789 F.2d 1103, 1112 (5th Cir.1986). However, the Fifth Circuit has also cautioned that "a federal court may not itself provide a limiting construction of legislation that is not so readily susceptible." Id. This Court declines to recognize the promulgated regulation as a cure to the Act's deficiencies.18 The regulation provides relief to only a limited segment of the class of persons otherwise subject to the legislation. The Court notes, and Defendants concede, that the regulation applies only to sex offenders who are under supervision by probation officers of the State of Louisiana (transcript, p. 40:14-19).19 It provides no relief for offenders who were under supervision in other jurisdictions. Because neither of the Plaintiffs here are under the supervision of the State of Louisiana, the regulation is inapplicable to them. Because the regulation fails to provide any form of relief or protection to these Plaintiffs, it cannot be deemed an adequate cure to the unconstitutional features of the legislation.20

CONCLUSION

Although the Act is intended to promote the legitimate and compelling state interest of protecting minors from internet predators, the near total ban on internet access imposed by the Act unreasonably restricts many ordinary activities that have become important to everyday life in today's world. The sweeping restrictions on the use of the internet for purposes completely unrelated to the activities sought to be banned by the Act impose severe and unwarranted restraints on constitutionally protected speech. More focused restrictions that are narrowly tailored to address the specific conduct sought to be proscribed should be pursued.

For all of the foregoing reasons, the Court concludes that the Act is unconstitutionally overbroad and void for vagueness, and judgment shall issue in favor of Plaintiffs and against Defendants, enjoining enforcement of the Act.

IT IS ORDERED that, within ten days of the issuance of this Opinion, the parties shall submit a joint proposed judgment that accords with this Opinion.