Blog post written by Attorney Philip B. Adams.

A.    ISSUES PRESENTED
                                                    
              Within this blog post, I will consider the constitutionality of La. R.S. 14:81.4, Prohibited Sexual Conduct between an Educator and a Student. Notably, this statute only criminalizes sexual conduct between an educator and an adult student, as I will explain in greater detail below. I will not adopt a position on whether I think the law is “a good idea” or not but will only analyze this law through a constitutional framework. Specifically, I will consider the following issues in this blog post: 

To the extent that La. R.S. 14:81.4 criminalizes the performance of private, consensual, non-commercial acts of sexual intimacy between individuals otherwise legally capable of consent,

1. is La. R.S. 14:81.4 unconstitutional on its face and unconstitutional as applied in that it (i) violates the vital interest in liberty protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution and (ii) analogously infringes on a vital liberty interest protected by the right to due process of law expressly guaranteed by Article I, §2 of the Louisiana Constitution; and
2. is La. R.S. 14:81.4 unconstitutional on its face and unconstitutional as applied in that it (i) violates the Fourteenth Amendment guarantee of equal protection of the laws embodied in the United States Constitution and (ii) analogously infringes on the right to equal protection of the laws and the right to be free from arbitrary, capricious, and unreasonable discrimination as expressly guaranteed by the right to individual dignity embodied in Article I, §3 of the Louisiana Constitution; and
3. is La. R.S. 14:81.4 unconstitutional on its face and unconstitutional as applied (i) as an infringement of the right to privacy embedded in the United States Constitution and (ii) as an infringement upon the right to privacy expressly guaranteed by Article I, § 5 of the Louisiana Constitution?

 
       B. HYPOTHETICAL FACT PATTERN 

                To aid in constitutional analysis, I will propose a hypothetical fact pattern. Suppose Jane Doe is a student at School A, and Teacher Jack is a teacher at that same school. Teacher Jack is not a teacher of Jane Doe and does not have any classes with Jane Doe because she is only taught by other teachers. Jane Doe is 20-years-old. Teacher Jack is also an adult. Teacher Jack and Jane Doe somehow meet and have sexual intercourse. Teacher Jack is never alleged to have used his position of trust or authority as a teacher to somehow coerce or exploit Jane Doe into having intercourse with him; i.e., the two individuals willingly and voluntarily engage in sex as consenting adults and have no other connection to each other aside from being at the same school. Eventually, someone finds out about the relationship and reports Teacher Jack for violating La. R.S. 14:81.4. Jack hires a highly competent attorney who is knowledgeable on this issue and decides to challenge the constitutionality of the charge against him.
                                                                   
      C. GENERAL PRINCIPLES OF REVIEW FOR CONSTITUTIONALITY

“Mindful of our civilian mandate, ... we begin [our review of the defendant's constitutional challenge], as we must, with the language of the [statute] itself.” Quinn v. Louisiana Citizens Property Ins. Corp., 12–0152, p. 11 (La.11/2/12), 118 So.3d 1011, 1018.

               La. R.S. 14:81.4, Prohibited Sexual Conduct between Educator and Student, reads as follows:

“§81.4.  Prohibited sexual conduct between educator and student
A.  Prohibited sexual conduct between an educator and a student is committed when any of the following occur:
(1)  An educator has sexual intercourse with a person who is seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, when the victim is not the spouse of the offender and is a student at the school where the educator is assigned, employed, or working at the time of the offense.
(2)  An educator commits any lewd or lascivious act upon a student or in the presence of a student who is seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, with the intention of gratifying the sexual desires of either person, when the victim is a student at the school in which the educator is assigned, employed, or working at the time of the offense.
(3)  An educator intentionally engages in the touching of the anus or genitals of a student seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, using any instrumentality or any part of the body of the educator, or the touching of the anus or genitals of the educator by a person seventeen years of age or older, but less than twenty-one years of age, where there is an age difference of greater than four years between the two persons, when the victim is a student at the school in which the educator is assigned, employed, or working at the time of the offense using any instrumentality or any part of the body of the student.
B.  As used in this Section:
(1)  ‘Educator’ means any administrator, coach, instructor, paraprofessional, student aide, teacher, or teacher aide at any public or private school, assigned, employed, or working at the school or school system where the victim is enrolled as a student on a full-time, part-time, or temporary basis.
(2)  ‘School’ means a public or nonpublic elementary or secondary school or learning institution which shall not include universities and colleges.
(3)  ‘Sexual intercourse’ means anal, oral, or vaginal sexual intercourse.  Emission is not necessary, and penetration, however slight, is sufficient to complete the crime.
(4)  ‘Student’ includes students enrolled in a school who are seventeen years of age or older, but less than twenty-one years of age.
C.  The consent of a student, whether or not that student is seventeen years of age or older, shall not be a defense to any violation of this Section.
D.  Lack of knowledge of the student's age shall not be a defense.
E.(1)  Whoever violates the provisions of this Section shall be fined not more than one thousand dollars, or imprisoned for not more than six months, or both.
(2)  For a second or subsequent offense, an offender may be fined not more than five thousand dollars and shall be imprisoned, with or without hard labor, for not less than one year nor more than five years.
F.  Notwithstanding any claim of privileged communication, any educator having cause to believe that prohibited sexual conduct between an educator and student shall immediately report such conduct to a local or state law enforcement agency.
G.  No cause of action shall exist against any person who in good faith makes a report, cooperates in any investigation arising as a result of such report, or participates in judicial proceedings arising out of such report, and such persons shall have immunity from civil or criminal liability that otherwise might be incurred or imposed.  This immunity shall not be extended to any person who makes a report known to be false or with reckless disregard for the truth of the report.
H.  In any action to establish damages against a defendant who has made a false report of prohibited sexual conduct between an educator and student, the plaintiff shall bear the burden of proving that the defendant who filed the false report knew the report was false or that the report was filed with reckless disregard for the truth of the report.  A plaintiff who fails to meet the burden of proof set forth in this Subsection shall pay all court costs and attorney fees of the defendant.
Acts 2007, No. 363, §1; Acts 2009, No. 210, §1, eff. Sept. 1, 2009.”
 
 
                 Although there are numerous factors that may bear upon interpreting a statute, as it concerns a challenge to whether the statute conforms to the language and purposes of the constitution, the following summary is especially informative: “Words and phrases shall be read in context and shall be construed according to the common and approved usage of the language.” La. R.S. 1:3. The civilian mandate applies with equal force when interpreting constitutional provisions. Therefore, “[w]e begin, as we must, with the applicable constitutional language.” Louisiana Federation of Teachers v. State, 13–0120, p. 24 (La.5/7/13), 118 So.3d 1033, 1049. “When a constitutional provision is plain and unambiguous and its application does not lead to absurd consequences, its language must be given effect. When interpreting constitutional language, the same general rules used in interpreting laws and other written instruments are followed.” Louisiana Federation of Teachers, 13–0120 at 24, 118 So.3d at 1049 (citations omitted).

            When analyzing a statute under a provision of our constitution to determine whether the statute is constitutional, the following principles apply:  

1. As a general rule, legislative instruments are presumed to be constitutional; therefore, the party challenging the validity of a legislative instrument has the burden of proving its unconstitutionality.
2. Because the provisions of the Louisiana Constitution are not grants of power, but instead are limitations on the otherwise plenary power of the people of the state, exercised through the legislature, the legislature may enact any legislation that the constitution does not prohibit. Consequently, a party challenging the constitutionality of a legislative instrument must point to a particular provision of the constitution that would prohibit the enactment of the legislative instrument and must demonstrate clearly and convincingly that it was the constitutional aim of that provision to deny the legislature the power to enact the legislative instrument in question. A constitutional limitation on the legislative power may be either express or implied.
3.  Finally, because it is presumed that the legislature acts within its constitutional authority in promulgating a legislative instrument, this court must construe a legislative instrument so as to preserve its constitutionality when it is reasonable to do so. In other words, if a legislative instrument is susceptible to two constructions, one of which would render it unconstitutional or raise grave constitutional questions, the court will adopt the interpretation of the legislative instrument which, without doing violence to its language, will maintain its constitutionality.

Louisiana Federation of Teachers, 13–0120 at 21–22, 118 So.3d at 1048 (citations omitted).
 
               These principles are general guidelines to aid a court's review. More specific guidelines may dictate the burden required of a person challenging the constitutionality of legislation, depending on the type of constitutional challenge. Such is the case here, when someone brings a “facial challenge” to the constitutionality of La. R.S. 14:81.4. In Prejean v. Barousse, 12–1177, p. 4 (La.1/29/13), 107 So.3d 569, 571–72, the Louisiana Supreme Court reiterated the following specific guidelines applicable to facial challenges: “To challenge a legislative act as unconstitutional on its face is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exist under which the statute would be valid.” With respect to the “as applied” challenge, suppose in our hypothetical fact pattern that Teacher Jack vehemently denies the allegations made against him but asserts that, even if one assumes arguendo that the allegations against him are factually correct, La. R.S. 14:81.4 “as applied” to him is unconstitutional.
 
          D. SUBSTANTIVE DUE PROCESS CHALLENGE

ISSUE:  To the extent that La. R.S. 14:81.4 criminalizes the performance of private, consensual, non-commercial acts of sexual intimacy between individuals legally capable of consent, is La. R.S. 14:81.4 unconstitutional on its face and unconstitutional as applied in that it (i) violates the vital interest in liberty protected by the Due Process Clause of the Fourteenth Amendment in the United States Constitution and (ii) analogously infringes on a vital liberty interest protected by the right to due process of law expressly guaranteed by Article I, §2 of the Louisiana Constitution?
 
             The Due Process Clause of the 14th Amendment to the United States Constitution provides that “nor shall any State deprive any person of life, liberty, or property, without due process of law.”  Similarly, Article I, §2 of the Louisiana Constitution states that “No person shall be deprived of life, liberty, or property, except by due process of law.”

          In Lawrence, the United States Supreme Court declared that the anti-sodomy law of the State of Texas violated the defendants' constitutional rights. The Texas statute criminalized sexual intimacy by same-sex couples but not identical behavior by different-sex couples. Events leading up to the charge commenced when Houston police were dispatched to a private residence on a report of a weapons disturbance. They entered the apartment where Lawrence resided and observed Lawrence and another man, both adults, engaging in a consensual sexual act. Both men were arrested and charged with “deviate sexual intercourse.” After the trial court rejected their constitutional challenges to the statute, the defendants entered pleas of nolo contendere. The Texas appellate court, sitting en banc, rejected their constitutional claims. The Supreme Court reversed the district court and the Texas appellate court. Lawrence, 539 U.S. at 579, 123 S.Ct. at 2484.

            In reversing, the Supreme Court addressed the legal issue presented to it and framed the issue in broad terms:  "Whether petitioners' criminal convictions for adult consensual sexual intimacy in the home violates their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment." Id. at 564. Writing for the Court, Justice Anthony Kennedy concluded: "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows [even] homosexual persons the right to make this choice." Id. at 567. The Supreme Court majority recognized "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Id. at 572. Accordingly, the majority decision was based on the liberty interest found in the substantive component of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Id. at 564.

           The majority did caution against extension of its holding beyond the "realm of personal liberty which the government may not enter."  Lawrence, 539 U.S. at578, 123 S.Ct. at 2484. The opinion stated, "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution." Id. However, the majority explicitly declared that the “Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Id. Thus, Lawrence made clear that not even the rational basis test was satisfied when it found that the Texas statute criminalizing sexual intimacy between two consenting adults furthered “no legitimate state interest.”

           When it struck down Texas’s statute, the Court in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) broadly made clear through its choice of language that a state cannot criminalize two individuals of the age of consent for engaging in private, consensual, noncommercial sex with one another: 
“The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices…The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’ Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”
Lawrence, 539 U.S. at 578, 123 S.Ct. at 2484.
 
            Post-Lawrence, the United States Court of Appeals for the Fifth Circuit has addressed some of the case’s contours. In Reliable Consultants, Inc. v. Earle, No. 06-51067 (5th Cir. 3/10/2008), the court addressed the constitutionality of a Texas statute making it a crime to promote or sell sexual devices. Reliable Consultants, Inc. challenged the Texas statute as violating the substantive liberty rights protected by the Fourteenth Amendment. Id. at P. 4. More specifically, the Earle court framed the issue presented as follows:

“To determine the constitutional standard applicable to this claim, we must address what right is at stake. Plaintiffs claim that the right at stake is the individual’s substantive due process right to engage in private intimate conduct free from government intrusion. The State proposes a different right for the Plaintiffs:  ‘the right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.’”  Id. at P. 7.
The Earle court addressed what specific right was at stake by stating,
“The Court in Lawrence—where it overruled its decision in Bowers v. Hardwick and struck down Texas’s sodomy ban—guides our decision:

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. Lawrence, 539 U.S. at 567, 123 S. Ct. at 2478.

The right the Court recognized was not simply a right to engage in the sexual act itself, but instead a right to be free from governmental intrusion regarding ‘the most private human contact, sexual behavior.’ That Lawrence recognized this as a constitutional right is the only way to make sense of the fact that the Court explicitly chose to answer the following question in the affirmative:  ‘We granted certiorari…[to resolve whether] petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.’Id. at 564, 123 S. Ct. at 2476 (emphasis added).”
Id. at Pgs. 7-8.
 
                  The Earle court went on to address the State’s arguments for upholding the statutory criminal law:

“The State also argues that Lawrence does not apply because the Court there was concerned with how the statute targeted a specific class of people. Justice O’Connor concurred in the majority’s decision in Lawrence because she would have struck down the law on equal protection, not substantive due process, grounds. Id. at 579-85, 123 S. Ct. at 2484-88 (O’Connor, J., concurring). But the Court explicitly rested its holding on substantive due process, not equal protection. Id. at 574-75, 123 S. Ct. at 2481-82. As discussed, the Court concluded that the sodomy law violated the substantive due process right to engage in consensual intimate conduct in the home free from government intrusion. Once Lawrence is properly understood to explain the contours of the substantive due process right to sexual intimacy, the case plainly applies.”

Id. at P. 8.

“The State says we have two alternatives:  (1) strict scrutiny if Lawrence established this right as a fundamental right or (2) rational basis review if Lawrence did not…

The Supreme Court did not address the classification, nor do we need to do so, because the Court expressly held that ‘individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.’ Lawrence, 539 U.S. at 578, 123 S. Ct. at 1283 (quoting with approval Bowers v. Hardwick, 478 U.S. 186, 216, 106 S. Ct. 2841, 2857 (Stevens, J., dissenting)). The Court also carefully delineated the types of governmental interests that are constitutionally insufficient to sustain a law that infringes on this substantive due process right. Therefore, our responsibility as an inferior federal court is mandatory and straightforward. We must apply Lawrence to the Texas statute.”
            Id. at P. 9.
“The State’s primary justifications for the statute are ‘morality based.’ …These interest in ‘public morality’ cannot constitutionally sustain the statute after Lawrence.”
            Id. at P. 10.
“Perhaps recognizing that public is an insufficient justification for the statute after Lawrence, the State asserts that an interest the statute serves is the ‘protection of minors and unwilling adults from exposure to sexual devices and their advertisement.’ …However, the States generalized concern for children does not justify such a heavy-handed restriction on the exercise of a constitutionally protected individual right…Furthermore, this asserted interest bears no rational relation to the restriction on sales of sexual devices because an adult cannot buy a sexual device without making the affirmative decision to visit a store and make the purchase.

“Just as in Lawrence, the State here wants to use its laws to enforce a public moral code by restricting private intimate conduct. The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.”
            Id. at Pgs. 11-12.
 
             In Smith v. Thaler, No. 12-10435 (5th Cir. 2013), the United States Court of Appeals for the Fifth Circuit further fleshed out Lawrence’s contours. In Smith, the defendant was convicted under TEX. PENAL CODE SECTION 22.011(a)(1)(A). Id. That provision criminalized “intentionally or knowingly[]…caus[ing] the penetration of the…sexual organ of another person by any means, without that person’s consent.” It also defined the circumstances under which that sexual activity occurs without the other person’s consent, including when “the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser.” Section 22.011(b)(10). Id. at Pgs. 1-2. On appeal, Smith challenged the constitutionality of section 22.011(b)(10). Id. at P. 2. Among several arguments made, Smith argued that Lawrence applied to invalidate the statute. Id. at P. 12. Ultimately, the court rejected Smith’s Lawrence-based argument due to the nonconsensual nature of Smith’s sexual relationship with the alleged victim. Id. at P. 13. The court reasoned that

“[W]e cannot say that it would have been unreasonable for the TCCA to have concluded that section 22.011(b)(10) reaches only sexual activity rendered nonconsensual based on a clergymember’s abuse of his position…”
Id. at P. 13.

Thus, the decision in Smith corroborated the holding in Reliable and made clear that Lawrence’s scope applied to protect consensual conduct and did not apply to protect nonconsensual conduct.

            Like the Texas statute at issue in Lawrence, supra, La. R.S. 14:81.4, a statute enacted in 2007, unconstitutionally infringes on the substantive due process rights of individuals to engage in private, consensual, and noncommercial sexual conduct that is protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. On its face, La. R.S. 14:81.4 criminalizes sexual conduct between “educators” and “students” even if private, consensual, noncommercial, and occurring between individuals who are both of the age of consent. By its very terms, the statute is a “strict liability” statute that singles out individuals who constitute a certain type of “educator” who fall within a specific age range and prohibits those individuals from engaging in consensual sex with student individuals of the age of consent.

               Specifically, under La. R.S. 14:81.4, an educator can be convicted of a crime even if the educator has private, consensual, and noncommercial sex with a student who is seventeen, eighteen, nineteen, or twenty as long as there is an age difference of greater than four years between the two persons, among other requirements.  Thus, for instance, a seventeen-year-old student could engage in sexual acts with an educator who was twenty-one-years-old or younger and not fall under the terms of the statute’s proscription. See La. R.S. 14:81.4(A)(1),(2), and (3). Likewise, an eighteen-year-old student could engage in sexual acts with an educator who was twenty-two-years-old or younger and not fall under the terms of the statute; a nineteen-year-old student could engage in sexual acts with an educator who was twenty-three-years-old or younger and not fall under the terms of the statute; and a twenty-year-old student could engage in sexual acts with an educator who was twenty-four-years-old or younger and not fall under the terms of the statute. The age requirements entailed in La. R.S. 14:81.4(A)(1),(2), and (3) ensure that older educators can be prosecuted under the statute’s terms while allowing for younger educators (maximally, those who are age twenty four or younger) to be precluded from criminal prosecution under La. R.S. 14:81.4 even if engaging in the same sexual conduct as their older colleagues and even if otherwise similarly situated.

                    Additionally, an educational professional working at a university or college would not fall under the terms of La R.S. 14:81.4 because of its definition of “school” that does “not include universities and colleges”--even if the educational professional and student are engaging in noncommercial, private, and consensual sexual acts that involve the same age ranges in La. R.S. 14:81.4(A)(1),(2), and (3). “Educator” is defined as “any administrator, coach, instructor, paraprofessional, student aide, teacher, or teacher aide at any public or private school, assigned, employed, or working at the school or school system where the victim is enrolled as a student on a full-time, part-time, or temporary basis.” La. R.S. 14:81.4(B)(1). “School” is defined as “a public or nonpublic elementary or secondary school or learning institution which shall not include universities and colleges.”  La. R.S. 14:81.4(B)(2). Thus, for instance, under La. R.S. 14:81.4 a college professor could potentially engage in sexual acts with a consenting student of the age of seventeen, eighteen, nineteen, or twenty enrolled at his university without fear of prosecution under La. R.S. 14:81.4, but a secondary school teacher would not be afforded the same liberty due to falling within the definition of “educator.”

               In Lawrence, supra, the Texas statute at issue criminalized consensual, noncommercial, sexual acts between two individuals of the age of consent.  In the instant case, Teacher Jack is being prosecuted for purported sexual acts involving a twenty-year-old student. Twenty is of the age of consent in Louisiana for sexual relationships. Teacher Jack is not accused of having engaged in any sexual conduct without consent. He is not accused of having misused a position of trust or authority to coerce or force anyone into having sex with him. In fact, he could not have misused his position of trust or authority even if he wanted to do so because Jane Doe, the alleged victim in this case, was never a student in any of Teacher Jack’s classrooms. Teacher Jack is not accused of having engaged in sexual conduct with an individual incapable of giving consent or not of the age of consent. He is not accused of having engaged in sexual conduct with a biological relative. Under the United States Constitution (Lawrence, supra), substantive due process protects an individual's liberty interest to engage in private, consensual, noncommercial sexual acts with another individual of the age of consent. This liberty interest and right to personal autonomy broadly recognized in Lawrence arguably extends even to instances, as in this case, in which the sexual acts are alleged to have occurred between an “educator” and “student” as defined in La. R.S. 14:81.4 as long as both individuals are of the age of consent and seek to engage in private, consensual, and noncommercial sexual conduct.

                      While it is possible that the state legislature intended to criminalize a teacher’s use of his or her position of trust or authority over a student in a forceful or coercive manner to procure sex, La. R.S. 14:81.4 contains no such language evincing such intent. While one might be inclined to assume that the legislature intended such language, one is constrained from making such an assumption. Criminal statutes are to be strictly construed with any doubts being resolved in favor of the accused. Courts cannot, and should not, create offenses or elements under statutes that are not in explicit terms promulgated by the legislature. In no area of law is this mandate more true than in the area of criminal law. No court has authority to declare an act to come within a state’s criminal laws merely by assumed implication. To hold otherwise would be to engage in legislation by judicial fiat, usurp the legislature’s role by reading language into the statute that isn’t there, and violate the right to due process of law. In any event, Teacher Jack could not have misused his position of trust or authority even if he wanted to do so because Jane Doe, the alleged victim in this case, was never a student in any of Teacher Jack’s classrooms.

                   The consensual conduct proscribed within La. R.S. 14:81.4 and at issue in the hypothetical case clearly falls within the ambit of Lawrence’s protection even though Lawrence contained dicta that stated that the case did not include situations involving “persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Lawrence, 539 U.S. at 578, 123 S.Ct. at 2484. Lawrence did not define the parameters of such situations and when they arise, and Lawrence rendered no holding regarding any situation falling within these discussed parameters. Almost assuredly, although Lawrence’s dicta is vague concerning the scope of such situations, such parameters cover individuals sexually victimized through injury, battery, force, or lack of consent. Such parameters would also cover mentally incompetent individuals who are unable to refuse consent. Louisiana, for instance, vindicates individuals under Lawrence’s qualified parameters by constitutionally valid criminal statutes (e.g., felony carnal knowledge of a juvenile under La. R.S. 14:80, misdemeanor carnal knowledge of a juvenile under La. R.S. 14:80.1, indecent behavior with juveniles under La. R.S. 14:81, pornography involving juveniles under La. R.S. 14:81.1, molestation of a juvenile or person with a physical or mental disability under La. R.S. 14:81.2, computer-aided solicitation of a minor under La. R.S. 14:81.3, sexual battery under La. R.S. 14:43.1, first-degree rape under La R.S. 14:42, etc.). Unlike La. R.S. 14:81.4, however, these statutes listed as examples do not criminalize noncommercial, private, and consensual sexual conduct between individuals of the age of consent. La. R.S. 14:81.4 goes further than these statutes by imposing strict-liability boundaries on otherwise allowed sexual conduct between individuals of the age of consent without any elemental requirement of proof of injury, battery, force, or lack of consent. In a paternalistic fashion,  La. R.S. 14:81.4 prohibits even consenting adults from entering into a sexual relationship in the confines of their homes and their own private lives and strips them of their dignity and liberty as free persons. If substantive due process and the right to privacy have any meaning, surely they extend to matters as personal and private as sexual relations between consenting individuals who are both of the age of consent and wish to engage in voluntary intimacy.

                  The Lawrence majority did not explicitly discuss the appropriate standard of review under the traditional substantive due process framework for matters involving sexual relations between consenting adults. Instead, the Court implicitly examined whether there was a rational basis for the existence of a statute criminalizing same-sex intimacy, and concluded that “[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Lawrence, 539 U.S. at 567-73)]. Hence, because the majority found that not even a legitimate state interest existed, the Texas statute did not even pass rational basis review, and, therefore, the court determined that the issue of whether sexual intimacy involved a fundamental right need not be resolved under a strict scrutiny analysis. Id.

                   In the hypothetical case, the State might assert as a compelling or legitimate interest that La. R.S. 14:81.4 contemplates the preservation of a special learning environment for high school students who are of the age of seventeen, eighteen, nineteen, or twenty and that the state has a compelling or legitimate interest in protecting that environment. The State might assert that La. R.S. 14:81.4 preserves the special learning environment because it “protects” high school students of the age of seventeen, eighteen, nineteen, or twenty from the sexual advances of teachers who have special authority and control over such students. The State might assert that, although the relationship is consensual, the statute is designed to “protect” individuals of the age of consent from people who have power, authority, or control over them on a day-to-day basis. However, such assertions by the State would not cure the lack of any element within La. R.S. 14:81.4 requiring proof of use of force or compulsion by an “educator” to engage in sexual conduct with a “student” of the age of seventeen, eighteen, nineteen, or twenty. Such assertions would also not comport with Lawrence’s broadly descriptive framework on sexual liberty: “The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices…The petitioners are entitled to respect for their private lives…” Lawrence, 539 U.S. at 578, 123 S.Ct. at 2484. Such assertions by the State would also not cure the fact that Teacher Jack could not have had any position of control, authority, or power over Jane Doe because Jane Doe was never a student in any of Teacher Jack’s classrooms. Most significantly, without the presence of force, compulsion, battery, or injury as a necessary element of La. R.S. 14:81.4, the State cannot validly assert that La. R.S. 14:81.4 “protects” two individuals of the age of consent engaging in consensual, private, and noncommercial sexual conduct. Without force, compulsion, battery, or injury within the sexual conduct, a need by the State to “protect” any individual becomes meaningless and instead controlling of constitutionally permissible conduct.

                Undoubtedly, in promoting the general welfare, the State has a clear and proper role in protecting the public from offensive displays of sexual behavior, in protecting adults from forcible or nonconsensual sexual conduct, and in protecting individuals not of the age of consent from sexual force or compulsion by those who are of the age of consent—all of which are circumstances that La. R.S. 14:81.4 does not involve. In fact, criminal statutes, such as those that proscribe indecent exposure, rape, statutory rape, etc., exist to protect the general public and even students from such harms. Likewise, the State arguably has an interest in protecting adult students from the sexual advances of teachers who use a position of trust or authority to force and compel sexual conduct. However, La. R.S. 14:81.4 criminalizes sexual conduct even when no force or compulsion is present and even when no proof is shown that trust or authority is used to force or compel sexual conduct. La. R.S. 14:81.4 covers conduct protected under substantive due process by proscribing even consensual, private, and noncommercial sex between individuals of the age of consent simply because those individuals fall within an educator-student context.

                In explicit terms encapsulating a specific “abuse or neglect” standard as opposed to a strict-liability standard contained in La. R.S. 14:81.4, the State’s interest in protecting adult students from educators who use force, compulsion, or abuse to engage in sexual conduct is already advanced in Louisiana Children’s Code Art. 609. (Mandatory and permitted reporting; training requirements) that states the following:

“ A. With respect to mandatory reporters:
(1) Notwithstanding any claim of privileged communication, any mandatory reporter who has cause to believe that a child's physical or mental health or welfare is endangered as a result of abuse or neglect or that abuse or neglect was a contributing factor in a child's death shall report in accordance with Article 610.
(2) Violation of the duties imposed upon a mandatory reporter subjects the offender to criminal prosecution authorized by R.S. 14:403(A)(1).”

Louisiana Children’s Code Article 603 (Definitions) states the following:
“Art. 603. Definitions
            As used in this Title:
            …
             (17) "Mandatory reporter" is any of the following individuals:
            …
(d) "Teaching or child care provider" is any person who provides or assists in the teaching, training, and supervision of a child, including any public or private teacher, teacher's aide, instructional aide, school principal, school staff member, bus driver, coach, professor, technical or vocational instructor, technical or vocational school staff member, college or university administrator, college or university staff member, social worker, probation officer, foster home parent, group home or other child care institutional staff member, personnel of residential home facilities, a licensed or unlicensed day care provider, or any individual who provides such services to a child in a voluntary or professional capacity.
 
            …”
 
 
                    For the reasons discussed, La. R.S. 14:81.4 facially (as well as in an “as applied” context for Teacher Jack) infringes on a substantive due process right of an “educator” of the age of consent to engage in sexual conduct with a “student” of the age of seventeen, eighteen, nineteen, or twenty when such conduct is private, consensual, and noncommercial. No set of circumstances exists in which La. R.S. 14:81.4 would be valid as written. Furthermore, the State does not have a compelling interest in criminalizing the conduct proscribed by La. R.S. 14:81.4, and La. R.S. 14:81.4 is not narrowly tailored to achieving any asserted interest by the State. Therefore, La. R.S. 14:81.4 is unconstitutional on its face and as applied.

                     Let it be clear that this interpretation of La. R.S. 14:81.4 does not condone a teacher’s use of trust or authority to force, coerce, batter, or otherwise sexually injury a student. In any event, La. R.S. 14:81.4 does not even contain any language regarding trust or authority, much less the misuse of that trust or authority, as an element of the criminal offense. The statute only involves strict liability imposed upon individuals of the age of consent. Any argument that the this interpretation of La. R.S. 14:81.4 somehow condones use of trust or authority to the detriment of a student falls flat since such specific conduct is not even mentioned in the statute.

                     Let it also be clear that this interpretation of La. R.S. 14:81.4 does not minimize the role of a teacher and the relationship of authority that a teacher has with respect to students who are of the age of consent. A mere relationship of authority (with no requirement of proof of an educator using force or compulsion in engaging in sexual conduct with a student) cannot be used to justify criminalizing sexual conduct between individuals who are of the age of consent and engage in consensual, private, and noncommercial sexual activity in light of Lawrence, supra. Substantive due process rights must prevail over paternalistic notions of protecting individuals who are otherwise of the age of consent and otherwise allowed to engage in private, consensual, and noncommercial sexual activity “but for” falling within an educator-student context, especially a context (as in this case) in which the educator and student have never inhabited the same classroom. To hold that the State can permissibly proscribe conduct within the parameters of  La. R.S. 14:81.4 would invite the State to pass laws that regulate sexual conduct among those who are of the age of consent within every conceivable sphere of life in which a potential, but unproved, asymmetric power or authority dynamic exists between the participants. For instance, under the same rationale that might be advanced in the educator-student context to attempt to justify La. R.S. 14:81.4’s proscription of conduct, what would stop the State from criminalizing sexual conduct in a strict-liability fashion between an employer and an employee in every context? Employees often work for employers for years in lengthy and close relationships, and the employers maintain a tremendous level of authority over the employees just as in the educator-student context. Some might even argue that employers assert more power and authority over employees than educators might exert over students of the age of seventeen, eighteen, nineteen, or twenty. After all, an employer has the power to cut off an employee’s economic livelihood at a moment’s notice and dictate employee conduct. The position of power between the employer and employee is substantially and asymmetrically in the employer’s favor. Just as the “student” does with respect to the “educator,” the employee looks to the employer for guidance and holds trust in the employer. What bounds would circumscribe any legislative attempt to criminalize sexual conduct in such a context? Substantive due process bounds would provide protection in such a context in a fashion that recognizes a vital liberty interest in individuals of the age of consent having a right to engage in sexual conduct that is private, consensual, and noncommercial.

                    Perhaps the State may like to have before it a different statute than the one that the legislature provided in La. R.S. 14:81.4. Regardless of how one might feel about an educator and student who are both of the age of legal consent engaging in sexual conduct that is consensual, private, and noncommercial, the rule of law must prevail through recognition that La. R.S. 14:81.4 violates substantive due process within the sphere of intimate relations, especially in light of Lawrence’s broad recognition of a liberty interest of adults engaging in sexual intimacy.

             E.  EQUAL PROTECTION; FREEDOM FROM DISCRIMINATION CHALLENGE

ISSUE:  To the extent that La. R.S. 14:81.4 criminalizes the performance of private, consensual, non-commercial acts of sexual intimacy between individuals legally capable of consent, is La. R.S. 14:81.4 unconstitutional on its face and unconstitutional as applied in that it (i) violates the Fourteenth Amendment guarantee of equal protection of the laws embodied in the United States Constitution and (ii) analogously infringes on the right to equal protection of the laws and the right to be free from arbitrary, capricious, and unreasonable discrimination as expressly guaranteed by the right to individual dignity embodied in Article I, §3 of the Louisiana Constitution?
 
              While decided on substantive due process grounds, the majority in Lawrence emphasized the equal protection principles implicated by the challenged criminal prohibition as well, stating, “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Id. at 575-76 (noting that conviction under the Texas sodomy statute would come within Texas’s registration law, “underscor[ing] the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition”). Additionally, O’Connor, in her concurrence in the judgement, in which she engaged in equal protection analysis, stated that the Court has “been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships." Id. at 580.

                 La. R.S. 14:81.4 infringes on the right to equal protection of the laws, guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, §3 of the Louisiana Constitution, and also infringes on the right to be free from arbitrary, capricious, and unreasonable discrimination guaranteed by the right to individual dignity embodied in Article I,  §3 of the Louisiana Constitution.

                    The Fourteenth Amendment of the United States Constitution provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); see also Plyler v. Doe, 457 U.S. 202, 216 (1982).

               Similar in language to the Equal Protection Clause of the Fourteenth Amendment, Article I, §3 of the Louisiana Constitution states that “No person shall be denied the equal protection of the laws.  No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations.  No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations...”

               Unlike the federal constitution, a state constitution's provisions are not grants of power, but instead are limitations on the otherwise plenary power of the people of a state, exercised through its legislature. Bd. of Comm'rs of N. Lafourche Conservation, Levee & Drainage Dist. v. Bd. of Comm'rs of Atchafalaya Basin Levee Dist., 95-1353 (La.1/16/96), 666 So.2d 636, 639. Therefore, the legislature may enact any legislation the state constitution does not prohibit. Id. In Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094, 1107-1108 (La.1985), the Louisiana Supreme Court provided a succinct analysis of Louisiana's equal protection clause:

Article I, Section 3 commands the courts to decline enforcement of a legislative classification of individuals in three different situations: (1) When the law classifies individuals by race or religious beliefs, it shall be repudiated completely; (2) When the statute classifies persons on the basis of birth, age, sex, culture, physical condition, or political ideas or affiliations, its enforcement shall be refused unless the state or other advocate of the classification shows that the classification has a reasonable basis; (3) When the law classifies individuals on any other basis, it shall be rejected whenever a member of a disadvantaged class shows that it does not suitably further any appropriate state interest.
 
                    For equal protection analysis, classification exists here in a broad sense in that one group of educators of the age of consent is prohibited from even engaging in sexual conduct with student individuals of the age of consent in a private, noncommercial, and consensual context. Under O’Connor’s reasoning in Lawrence, supra, this broad classification would fall under equal protection analysis for failing to satisfy even a rational basis review since La. R.S. 14:81.4 is not rationally related to any legitimate governmental purpose.  La. R.S. 14:81.4 regulates the sexual conduct of a group of biologically unrelated individuals of the age of consent who wish to engage in private, noncommercial, and consensual intimacy.

                   In a narrow sense, classification exists under La R.S. 14:81.4 in that a specific type of “educator” within a certain age range is not allowed to engage in sexual conduct with student individuals of the age of consent in a private, noncommercial, and consensual context. For equal protection purposes under federal law, age is not a suspect classification and distinctions based on age are subject to rational basis review. Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410. For equal protection analysis under state law, the Louisiana Supreme Court held in Manuel v. State, 95-2189 (La.3/8/96), 692 So.2d 320, that when a statute classifies persons on the basis of any of the six enumerated grounds found in the third sentence of La. Const. art. 1, § 3, including age, the statute is unconstitutional unless the proponents are able to prove that the legislative classification "substantially furthers an appropriate state purpose."  Manuel, supra at 339 (citing Sibley) (state constitution calls for more rigorous scrutiny than federal constitutional analysis). Manuel further dictates that because age is specifically enumerated in Section 3, "the burden of proof is on the proponent of constitutionality to show that the statute establishing such a classification substantially furthers an appropriate governmental purpose." Manuel, supra at 340.

                  La. R.S. 4:81.4 constitutes an unreasonable discrimination against older educators as persons based on age and educator type. Specifically, the statute singles out individuals who constitute a certain type of “educator” who fall within a specific age range and prohibits them from engaging in consensual sex with student individuals even if of the age of consent. Under La. R.S. 14:81.4, an educator can be convicted of a crime even if the educator has private, consensual, and noncommercial sex with a student who is seventeen, eighteen, nineteen, or twenty even if the educator and student never inhabit the same classroom as long as there is an age difference of greater than four years between the two persons and the educator and student are at the same school, among other requirements.  Thus, for instance, a seventeen-year-old student could engage in sexual acts with an educator who was twenty-one-years-old or younger and not fall under the terms of the statute’s proscription. See La. R.S. 14:81.4(A)(1),(2), and (3). Likewise, an eighteen-year-old student could engage in sexual acts with an educator who was twenty-two-years-old or younger and not fall under the terms of the statute; a nineteen-year-old student could engage in sexual acts with an educator who was twenty-three-years-old or younger and not fall under the terms of the statute; and a twenty-year-old student could engage in sexual acts with an educator who was twenty-four-years-old or younger and not fall under the terms of the statute. The age requirements entailed in La. R.S. 14:81.4(A)(1),(2), and (3) discriminate against older educators by ensuring that they can be prosecuted under its terms while ensuring that younger educators are precluded from criminal prosecution under La. R.S. 14:81.4 even if engaging in the same sexual conduct as their older colleagues and even if otherwise similarly situated. Thus, La. R.S. 14:81.4 results in a disparity of what types of educators are prosecuted because of the inherent age ranges within the statute.
 
                La. R.S. 14:81.4 also constitutes an unreasonable discrimination against young students of the age of consent who are age seventeen, eighteen, nineteen, or twenty. Notably, the statute does not criminalize the sexual behavior of “students” who are of the age of twenty one or older. This fact alone destroys any contention that La. R.S. 14:81.4 has a legitimate purpose in protecting students solely because of the “authority and control” that educators possess or because of the need to promote a “special learning environment” for students. If students of the age of consent who are seventeen, eighteen, nineteen, or twenty are posited to need “protection” based on the existence of a “special learning environment” or an “authority” dynamic that exists based on the educator position within the education context, why don’t students of the age of consent who are twenty one or older also need to be “protected” based on the existence of a “special learning environment” or an “authority” dynamic that exists within the education context? The State can advance no legitimate purpose or reasonable basis for such discrimination directed towards this group of individuals of the age of consent, especially when the educator and student never inhabit the same classroom (as in the instant case). La. R.S. 14:81.4 is internally inconsistent. It is insufficient for the State to assume that younger adults are incapable of making adult decisions about their sex lives.

                   Additionally, an individual working at a university or college, although otherwise meeting the definition of “educator” contained within La. R.S. 14:81.4, would not fall under the terms of the statute because of its definition of “school” that does “not include universities and colleges”--even if the individual and student are engaging in noncommercial, private, and consensual sexual acts that involve the same age ranges in La. R.S. 14:81.4(A)(1),(2), and (3). “Educator” is defined as “any administrator, coach, instructor, paraprofessional, student aide, teacher, or teacher aide at any public or private school, assigned, employed, or working at the school or school system where the victim is enrolled as a student on a full-time, part-time, or temporary basis.” La. R.S. 14:81.4(B)(1). “School” is defined as “a public or nonpublic elementary or secondary school or learning institution which shall not include universities and colleges.”  La. R.S. 14:81.4(B)(2). Thus, for instance, under La. R.S. 14:81.4 a college professor could engage in sexual acts with a consenting student of the age of seventeen, eighteen, nineteen, or twenty enrolled at his university without fear of prosecution, but a secondary school teacher would not be afforded the same liberty due to the secondary school teacher falling within the definition of “educator.” Thus, La. R.S. 14:81.4 results in a disparity of what types of educators are prosecuted because of the inherent educator types selected for criminalization within the statute’s terms.

                 La. R..S. 14:81.4 violates the Equal Protection Clause of the United States Constitution and Louisiana’s analogous counterpart in Article I, §3 based on age classification and educator-type classification. La. R.S. 14:81.4 also violates Louisiana’s prohibition against unreasonable discrimination based on age contained in Article I, §3. The classification in La. R.S. 14;81.4 proscribes sexual conduct between older educators and students but does not proscribe sexual conduct between younger educators [those of the age of twenty four or younger under the context of La. R.S. 14:81.4(A)(1),(2), and (3)] and students. Additionally, the classification in La. R.S. 14:81.4 proscribes sexual conduct involving educators and students of the age of seventeen, eighteen, nineteen, or twenty but does not proscribe sexual conduct involving individuals working at universities and colleges who engage in sexual conduct with students who are of the age of seventeen, eighteen, nineteen, or twenty.

                 The State cannot advance even a legitimate interest under a rational basis test for purposes of federal equal protection analysis for merely proscribing sexual conduct between older, non-university/college educators and students of the age of seventeen, eighteen, nineteen, or twenty but not also proscribing sexual conduct between younger, non-university/college educators and students of the age of seventeen, eighteen, nineteen, or twenty when all involved individuals are otherwise similarly situated. As a result, La. R.S. 14:81.4 must fall under federal equal protection analysis. Furthermore, the State cannot show that the legislative classification against older educators, as opposed to younger educators, "substantially furthers an appropriate state purpose," Manuel, supra at 339, especially when applied to an educator and student who never inhabit the same classroom (as in the instant case). As a result, La. R.S. 14:81.4. must fall under Louisiana state equal protection analysis.
           
                    When sexual conduct of a specific class of educators and age-of-consent students is criminalized, that declaration in and of itself is an invitation to subject those individuals to discrimination both in the public and in the private spheres. The stigma that La. R.S. 14:81.4 imposes is not trivial. To be sure, La. R.S. 14:81.4 is but a misdemeanor in the Louisiana legal system; however, the statute is still a criminal offense with ramifications for those who are charged. A conviction under the statute results in a criminal record. Additionally, a conviction under the statute results in the onerous collateral consequence of mandatory registration for fifteen (15) years as a sex offender under Louisiana law for conduct that would otherwise be legal among individuals of the same ages. See La. R.S. 15:541(24)(a) that classifies La. R.S. 14:81.4 as a “sex offense” and La. R.S. 15:544(A) that specifies the applicable duration period. Furthermore, a conviction under the statute carries with it other debilitating collateral consequences, such as loss of a job, to name but one example.

              F. RIGHT TO PRIVACY CHALLENGE

ISSUE:  Is La. R.S. 14:81.4 unconstitutional on its face and unconstitutional as applied (i) as an infringement of the right to privacy embedded in the United States Constitution and (ii) as an infringement upon the right to privacy expressly guaranteed by Article I, § 5 of the Louisiana Constitution?
 
                  The right to privacy enumerated in Article I, Section 5, of the Louisiana Constitution protects the choice by biologically unrelated citizens of the age of consent to engage in private, consensual, noncommercial acts of sexual intimacy. Article I, Section 5 of the Louisiana Constitution, entitled "Right to Privacy," states, in relevant part: "Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy." As an initial precept, Article I, Section 5 of the Louisiana Constitution provides all Louisiana citizens greater privacy rights than those provided under the federal constitution. State v. Perry, 610 So.2d 746, 755-756 (La.1992). The Louisiana Constitution expressly contains a "right to privacy," whereas the federal constitution's right to privacy is unenumerated and is believed to be contained in the "penumbra" of related rights guaranteed by the Bill of Rights. See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The Louisiana Supreme Court has recognized the greater protections afforded by Article I, Section 5, and has continued to endorse this right, stating that "[o]ur state constitution's declaration of the right to privacy contains an affirmative establishment of a right of privacy" and that this "is one of the most conspicuous instances in which our citizens have chosen a higher standard of individual liberty than that afforded by the jurisprudence interpreting the federal constitution." State v. Hernandez, 410 So.2d 1381, 1385 (La.1982) (emphasis in original); see also, State v. Moreno, 619 So.2d 62, 64-65 (La.1993); Moresi v. Dept. of Wildlife & Fisheries, 567 So.2d 1081, 1092-1093 (La. 1990); Hondroulis v. Schuhmacher, 553 So.2d 398, 415 (La.1989); Parish National Bank v. Lane, 397 So.2d 1282, 1283 (La. 1981); see also Devlin, Privacy and Abortion Rights Under the Louisiana State Constitution, 51 La. L.Rev. 685 (1991); Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La. L.Rev. 1 (1974).
 
                           The Louisiana constitutional right of privacy protects an individual's "right to be left alone, to be free of unjustified governmental interference with his mind, body, or autonomy." State v. McHugh, 92-1852 (La. 1/6/94); 630 So.2d 1259 (La. 1994). Control of one's body is essential to the concept of privacy. State v. Perry, 610 So.2d 746, 757-58 (La. 1992). The Louisiana Supreme Court has expressly held that:  where a decision as fundamental as those included within the right of personal privacy is involved, regulations imposing a burden on it may be justified only by compelling state interests, and these must be narrowly drawn to express only those interests. Hondroulis, 553 So.2d at 415. The state action must be no greater than that needed to further only that compelling interest. Perry, 610 So.2d at 760. Undoubtedly, La. R.S. 14:81.4 is state action. This statute criminalizes individuals of the age of consent who engage in consensual, private, and noncommercial sexual conduct. The sweeping nature of the statute invades that area of protected privacy guaranteed by Article I, Section 5 of our state constitution. Therefore, the State must provide a compelling interest to justify this intrusion. The State can advance no argument that demonstrates that there is a compelling state interest involved, or that La. R.S. 14:81.4 is a narrowly tailored legislative solution to a legitimate state problem. The government has no legitimate interest or compelling reasons for regulating, through criminal statutes, private, non-commercial, consensual acts of sexual intimacy between biologically unrelated individuals of the age of consent. Thus, the right to privacy guaranteed by our state constitution protects acts of non-commercial sexual intimacy between adults when done in private.

                    It is true that it is not the province of courts to legislate social policy or to determine whether the criminal laws enacted by the legislature are wise or desirable. And surely our legislature is authorized to make public policy determinations and to enact laws to further those policies. However, the legislature cannot validly enact a law that impermissibly infringes upon a constitutional guarantee. The very reason for elevating certain protections to the level of a constitutional guarantee is to ensure that the state does not infringe upon those protections. And when there is doubt as to the scope of protection afforded by a constitutional guarantee, it is the province, and in fact, the duty of courts, to interpret the law.

                        When interpreting our state constitution's privacy clause, it is important to bear in mind that the 1974 constitutional convention delegates added an express privacy protection to our constitution in order to expand the zone of privacy that had already been recognized under the federal constitution. As for determining whether the broad and non-specific term "privacy" includes the sexual acts at issue in this case, it does not matter that there was no express mention, at the constitutional debates, of a guarantee to engage in certain sexual acts, for as noted by the Court in Griswold, 85 S.Ct. at 1680-81, many of our most cherished federal constitutional guarantees failed to receive express mention in the Constitution or Bill of Rights.

                    Without debate, the power to make laws is constitutionally vested in the legislative, not the judicial, branch of government. However, the power to determine whether the laws enacted by the legislative branch violate the Louisiana Constitution is vested in the judicial branch. No court fulfills its constitutional duty by simply stamping approval on every act passed by the Louisiana Legislature, and thorough constitutional analysis is mandated whenever a legislative act is challenged, especially an act that has only existed since 2007 as in the instant case. La. R.S. 14:81.4 violates the protection guaranteed to individuals by La. Const. art. I, § 5 to be "secure in his... house" as well as his “person.” If one cannot be secure in matters as personal and private as sexual intimacy, the “right to privacy” embedded in our state constitution is empty verbiage.

                    As a strict-liability statute, La. R.S. 14:81.4 does not protect persons against unwanted exposure to public sexual behavior, but rather enforces a personal moral fiat that extends by its terms into one's own home. Whether or not one agrees with individuals of the age of consent engaging in private, consensual, and noncommercial sexual conduct is irrelevant to the constitutional analysis. The critical issue is whether legislators can constitutionally impose those views on a citizen whose non-public conduct is alleged to occur in his own home with a person capable of consenting and without force, coercion, or compulsion, and when such conduct does not involve use of contraband and does not cause injury to any other person or to the community. In other words, can the Legislature interfere with an individual's right to be left alone in the security of his or her home, as long as the person is not interfering with the rights of other individuals or of the public in general?

                          This hypothetical case does not involve individuals outside the age of consent, individuals incapable of consent (e.g., mental incompetents), public sexual exhibition, commercial sex, or unwanted sex. This hypothetical case also does not even involve an educator and student who were ever in the same classroom. The only apparent purpose of the prohibition is to dictate the type of sex that is acceptable to legislators. While this purpose arguably is an appropriate legislative concern when the sexual conduct involves injury or unwanted contact with another, or exposure to the public, or individuals not of the age of consent, or other persons without legal capacity, or commercial activity, or incestuous activity, this purpose does not justify an intrusion, in the absence of one of these circumstances, into the constitutionally guaranteed security of one's home. Two persons should be able to choose how they conduct their non-public, voluntary sexual relations in the security of their own home; a law that takes that choice away from them is an intrusion by the legislative branch that is constitutionally intolerable. There simply is no legislative interest in the public's health, safety, or welfare that warrants such an intrusion.

                         The arguments presented in this analysis for recognition of a right to privacy for individuals of the age of consent engaging in noncommercial, private, and consensual sexual conduct, including even teachers and students within this context, are not unprecedented. Arkansas’s analysis of similar issues is insightful in the instant case. Arkansas recognizes that a fundamental right to privacy, implicit in the Arkansas Constitution, protects all private, consensual, noncommercial acts of sexual intimacy between adults. Jegley v. Picado, 349 Ark. 600, 632, 80 S.W.3d 332, 350 (2002). In contrast, Louisiana has an explicit right to privacy. Recently, an Arkansas teacher challenged a similar statute barring sexual contact between educators and students less than twenty-one years old on the grounds that it violated his fundamental right to privacy. Paschal v. State, 2012 Ark. 127, 8, 388 S.W.3d 429, 434. In Paschal, a thirty-six-year-old high school teacher admittedly engaged in a five-month sexual relationship with one of his eighteen-year-old students. Id. at 3, 388 S.W.3d at 432. At the time of Paschal’s conviction, Arkansas law stated: A person commits sexual assault in the second degree if the person . . . [i]s a teacher in a public school in a grade kindergarten through twelve (K-12) and engages in sexual contact with another person who is [a] student enrolled in the public school and [l]ess than twenty-one (21) years of age. ARK. CODE ANN. § 5-14-125(a)(6) (2011).

                      Paschal was convicted of four counts of second-degree sexual assault and sentenced to thirty years imprisonment. Paschal, 2012 Ark. at 1, 388 S.W.3d at 431.  On appeal, Paschal challenged the constitutionality of section 5-14-125(a)(6) of the Arkansas Code on an “as applied” basis since his case involved sexual conduct with an adult student and not a child student. Paschal argued that it impermissibly criminalized consensual sexual conduct between not just educators and minor students but also educators and adult students, and therefore, infringed on his fundamental right to privacy in engaging in sexual intimacy with an eighteen-year-old student. Id. at 8–9, 388 S.W.3d at 434. In response, the State cited Talbert to support its assertion that a public high school teacher retains no fundamental right to have sexual contact with an eighteen-year-old high school student enrolled in a public school. Id. at 9, 388 S.W.3d at 435. Relying on such argument, the State asserted Paschal’s fundamental right to privacy had not been violated, and therefore, neglected to address Paschal’s contention that the statute was subject to strict scrutiny review. Id. at 13 n.8, 388 S.W.3d at 437 n.8.  By doing so, the State failed to claim a compelling state interest but instead argued that the Arkansas Constitution contemplated “the preservation of a special learning environment for high school students through the age of twenty-one” for which the state had a legitimate interest in protecting. Id. at 12, 388 S.W.3d at 436 (citing ARK. CONST. art. 14, § 1). Further, the State argued that the statute was designed to protect both minors and adults from having consensual sexual relationships with “people who have power, authority, or control over them on a day-to-day basis.” Id. at 13, 388 S.W.3d at 436.  The court disagreed. Paschal, 2012 Ark. at 14–15, 388 S.W.3d at 437. 

                 In a landmark decision, the court concluded that section 5-14-125(a)(6) of the Arkansas Code criminalized “consensual sexual conduct between adults” and, therefore, infringed on a teacher’s fundamental right to sexual privacy with adults. Id. at 11–12, 388 S.W.3d at 436.  Accordingly, the court applied a strict scrutiny form of review, requiring that the State successfully prove that “a compelling state interest is advanced by the statute and the statute is the least restrictive method available to carry out [the] state interest.”  Id. at 12, 388 S.W.3d at 436 (quoting Jegley v. Picado, 349 Ark. 600, 632, 80 S.W.3d 330, 350; Thompson v. Ark. Social Servs. 282 Ark. 369, 374, 669 S.W.2d 878, 880 (1984)).While recognizing that the state has a proper role in “protect[ing] people from forcible sexual conduct, and to protect minors from sexual abuse by adults,” Id. at 13, 388 S.W.3d at 437 (quoting Picado, 349 Ark. at 637, 80 S.W.3d at 353), and an additional “interest in protecting adult students from the sexual advances of teachers,” Id., the court determined that the statutory prohibition against adult consensual sex was not the least restrictive method to carry out the state’s interest. Id. at 13–14, 388 S.W.3d at 437. 98. Instead, the court concluded that the state’s interest was already furthered by the statute prohibiting mandated reporters, who hold positions of trust and authority, from using their position to engage in “sexual intercourse or deviate activity.” Paschal, 2012 Ark. at 14, 388 S.W.3d at 437 (citing ARK. CODE ANN. § 5-14- 125(a)(6) (Supp. 2011). Further, the court concluded that the statute was unconstitutional because it infringed on a fundamental right of adults to engage in consensual sexual relationships while providing no other less restrictive method for promoting any compelling state interest. Paschal, 2012 Ark. at 14–15, 388 S.W.3d at 437. 

               G. SUMMARY OF CONCLUSIONS FROM ANALYSIS OF CONSTITUTIONALITY OF LA. R.S. 14:81.4:
 
                        In light of the reasons presented, strong arguments exist that because La. R.S. 14:81.4 criminalizes the performance of private, consensual, non-commercial acts of sexual intimacy between individuals legally capable of consent, the following conclusions are warranted

1. La. R.S. 14:81.4 is unconstitutional on its face and unconstitutional as applied in that it (i) violates the vital interest in liberty protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution and (ii) analogously infringes on a vital liberty interest protected by the right to due process of law expressly guaranteed by Article I, §2 of the Louisiana Constitution; and
2. La. R.S. 14:81.4 is unconstitutional on its face and unconstitutional as applied in that it (i) violates the Fourteenth Amendment guarantee of equal protection of the laws embodied in the United States Constitution and (ii) analogously infringes on the right to equal protection of the laws and the right to be free from arbitrary, capricious, and unreasonable discrimination as expressly guaranteed by the right to individual dignity embodied in Article I, §3 of the Louisiana Constitution; and
3.  La. R.S. 14:81.4 is unconstitutional on its face and unconstitutional as applied (i) as an infringement of the right to privacy embedded in the United States Constitution and (ii) as an infringement upon the right to privacy expressly guaranteed by Article I, § 5 of the Louisiana Constitution.

 
                If you or someone you know is charged with La. R.S. 14:81.4, don’t let your constitutional rights potentially be violated. Contact a competent attorney, who is knowledgeable about La. R.S. 14:81.4, for help. 

Blog post written by Attorney Philip B. Adams.
 
                 Within this blog post, I will make a compelling argument for why La. R.S. 14:91.5 is unconstitutional on its face. I believe La. R.S. 14:91.5 violates the Free Speech Clause of the Louisiana Constitution (Article I, Section III) and the Free Speech Clause of the United States Constitution (First Amendment). La. R.S. 14:91.5 is a Louisiana statute still in effect that criminalizes, in a blanket fashion, any use of a social networking website by sex offenders. Within the analysis that follows, I will seek to illustrate that, despite La. R.S. 14:91.5's prohibition and the good intentions behind its enactment, the First Amendment of the United States Constitution and Article I, Section III of the Louisiana Constitution both protect even registered sex offenders. They too have the right to engage in public discourse and speech through social media. While this position on my part may seem unpopular, the First Amendment and Article I, Section III protect the Free Speech rights of all citizens, not some citizens. Additionally, criminal conduct on the part of anyone can still be punished through other valid criminal laws while preserving the Free Speech rights of everyone. 

                  In beginning this detailed analysis, one must first examine the statute at issue. La. R.S. 14:91.5 reads as follows:                                                
Ҥ91.5. Unlawful use of a social networking website
 
            A. The following shall constitute unlawful use of a social networking website:
              (1) The intentional use of a social networking website by a person who is required to register as a sex                            offender and who was convicted of R.S. 14:81 (indecent behavior with juveniles), R.S. 14:81.1 (pornography               involving juveniles), R.S. 14:81.3 (computer-aided solicitation of a minor), or R.S. 14:283 (video voyeurism)             or was convicted of a sex offense as defined in R.S. 15:541 in which the victim of the sex offense was a minor.
            (2) The provisions of this Section shall also apply to any person convicted for an offense under the laws of                another state, or military, territorial, foreign, tribal, or federal law which is equivalent to the offenses                          provided for in Paragraph (1) of this Subsection, unless the tribal court or foreign conviction was not obtained              with sufficient safeguards for fundamental fairness and due process for the accused as provided by the federal            guidelines adopted pursuant to the Adam Walsh Child Protection and Safety Act of 2006.
 
            B. For purposes of this Section:
            (1) "Minor" means a person under the age of eighteen years.
           (2)(a) "Social networking website" means an Internet website, the primary purpose of which is facilitating                  social interaction with other users of the website and has all of the following capabilities:
                     (i) Allows users to create web pages or profiles about themselves that are available to the general public                       or to any other users.
                    (ii) Offers a mechanism for communication among users.
             (b) "Social networking website" shall not include any of the following:
                    (i) An Internet website that provides only one of the following services: photo-sharing, electronic mail,                        or instant messaging.
                   (ii) An Internet website the primary purpose of which is the facilitation of commercial transactions                                       involving goods or services between its members or visitors.
                   (iii) An Internet website the primary purpose of which is the dissemination of news.
                   (iv) An Internet website of a governmental entity.
         (3) "Use" shall mean to create a profile on a social networking website or to contact or attempt to contact                      other users of the social networking website.
 
    C.(1) Whoever commits the crime of unlawful use of a social networking website shall, upon a first conviction, be     fined not more than ten thousand dollars and shall be imprisoned with hard labor for not more than ten years           without benefit of parole, probation, or suspension of sentence.
  (2) Whoever commits the crime of unlawful use of a social networking website, upon a second or subsequent              conviction, shall be fined not more than twenty thousand dollars and shall be imprisoned with hard labor for not       less than five years nor more than twenty years without benefit of parole, probation, or suspension of sentence.
       Acts 2011, No. 26, §1; Acts 2012, No. 205, §1”
 
               In 2011, Louisiana enacted a statute making it a felony for a class of registered sex offenders to engage in “[t]he intentional use of a social networking website by a person who is required to register as a sex offender and who was convicted of R.S. 14:81 (indecent behavior with juveniles), R.S. 14:81.1 (pornography involving juveniles), R.S. 14:81.3 (computer-aided solicitation of a minor), or R.S. 14:283 (video voyeurism) or was convicted of a sex offense as defined in R.S. 15:541 in which the victim of the sex offense was a minor.” La. R.S. 14:91.5(A)(1). “Use” under the statute “[means] to create a profile on a social networking website or to contact or attempt to contact other users of the social networking website.” La. R.S. 14:91.5(B)(3).

              A “social networking website” is defined as “an Internet website, the primary purpose of which is facilitating social interactions with other users of the website” and meets two capabilities.  First, the website must “[allow] users to create web pages or profiles about themselves that are available to the general public or to any other users.” La. R.S. 14:91.5(B)(2)(a)(i). Second, the website must “[offer] a mechanism for communication among users.” La. R.S. 14:91.5(B)(2)(a)(ii).

             The statute includes four exceptions. First, the statute does not reach websites that “[provide] only one of the following services:  photo-sharing, electronic mail, or instant messaging.” La. R.S. 14:91.5(B)(2)(b)(i). Second, the statute does not reach websites for which “the primary purpose of which is the facilitation of commercial transactions involving goods or services between its members or visitors.”  La. R.S. 14:91.5(B)(2)(b)(ii). Third, the statute does not reach websites for which “the primary purpose of which is the dissemination of news.” La. R.S. 14:91.5(B)(2)(b)(iii). Fourth, the statute does not reach websites “of a governmental entity.” La. R.S. 14:91.5(B)(2)(b)(iv).

             “[T]he transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity,‘ id., at 486, 85 S.Ct., at 1121. . . .” Gooding v. Wilson, 405 U.S. 518, 520-21, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression. Id.
 Only a statute that is substantially overbroad may be invalidated on its face. New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982); Broadrick v. Oklahoma, supra. “We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application....” Id., at 630, 93 S.Ct., at 2925 (Brennan, J., dissenting). Instead, “[i]n a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982); Kolender v. Lawson, 461 U.S. 352, 359, n. 8, 103 S.Ct. 1855, 1859, n. 8, 75 L.Ed.2d 903 (1983). Criminal statutes must be scrutinized with particular care, e.g., Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948); those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application. E.g., Kolender, supra, at 359, n. 8, 103 S.Ct., at 1859, n. 8.

            The First Amendment (and its analogous Louisiana provision) protect the right of persons to have access to the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U.S. 844, 868 (1997), and social media in particular, Packingham v. North Carolina, 582 U.S. ––––, 137 S.Ct. 1730, 198 L.Ed.2d 273 (2017)(reversing a conviction, on First Amendment grounds, under a North Carolina statute that criminalized sex offender access to social networking websites). Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.” Reno, supra, at 870. Social media users employ social networking websites to engage in a wide array of protected First Amendment activity. One of the most popular social networking websites is Facebook, which has billions of active users. 

            Statutes must be carefully drawn or authoritatively construed so as to be insusceptible of application to protected expression and conduct; failing this, they are unconstitutionally overbroad. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). A statute that punishes protected speech can withstand a facial constitutional attack only if, as authoritatively construed by the United State Supreme Court, it is not susceptible of application to speech that is protected by the First and Fourteenth Amendments to the Constitution of the United States. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed. 284 (1972). Furthermore, even if the statute is construed as punishing only conduct, conduct is often a means of expression, and the same analysis applies. Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 408 (1972).

            La. R.S. 14:95.1 punishes the “use” of a social networking website and arguably can be construed as punishing only conduct; however, the “use” of a social networking website like Facebook is almost always as a means of expression, as every Facebook user knows and as is common knowledge. Facebook users invariably comment and post on what other active users do as well as read content posted by others. In fact, the whole premise of Facebook is built around interaction with other “friends” and members of the public in an online forum. The same argument can be made about similar social media sites, such as Instagram, Twitter, etc. Undoubtedly, La. R.S. 14:91.5 proscribes a substantial amount of constitutionally protected expression and conduct.

            “[T]he sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002). A legislature “may pass valid laws to protect children” and other victims of sexual assault “from abuse.” See id., at 245; accord, New York v. Ferber, U.S. 747, 757 (1982). However, the assertion of a valid governmental interest “cannot, in every context, be insulated from all constitutional protections.” Stanley v. Georgia, 394 U.S. 557, 563 (1969). It is well established that, as a general rule, the Government “may not suppress lawful speech as the means to suppress unlawful speech.” Ashcroft v. Free Speech Coalition, U.S., at 255.

             While enacted with good intentions, La. R.S. 14:95.1 invariably suppresses a substantial amount of lawful speech and conduct in an effort to suppress unlawful speech and conduct. In fact, La. R.S. 14:95.1 criminalizes in a blanket fashion all use of social networking websites by a certain class of sex offenders with no regard to the type of use. In so doing, La. R.S. 14:91.5 does not even purport to have a pretense of “narrow tailoring” of the statute’s prescribed conduct to the government’s legitimate interest in protecting children. The statute arbitrarily burdens all registered sex offenders within a class by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal. With one overbroad stroke, Louisiana prevents access and use to what for many people is a principal source for knowing current events, checking ads for employment, conducting business, speaking and listening, and otherwise exploring the vast realms of human thought and knowledge.

            Fortunately, although Louisiana Revised Statute 14:91.5 is still in effect, the United States Supreme Court has already addressed the crux of the issue presented in this blog post in a similar case. In Packingham v. North Carolina, 137 S.Ct. 1730, 198 L.Ed.2d 273 (2017), the United States Supreme Court unanimously reversed, in an 8-0 decision on First Amendment grounds, a conviction of a registered sex offender under a North Carolina law that made it a felony for a registered sex offender to access a commercial social networking web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal web pages. In Packingham, the petitioner was convicted for having used Facebook with no allegation that he used the website to facilitate the sexual abuse of any children or anyone for that matter. Id.

            La. R.S. 14:91.5 and the North Carolina statute at issue in Packingham are similar in so many ways that the same rationale employed in Packingham to strike down the North Carolina statute must inexorably be employed to strike down La. R.S. 14:95.1.

           First, the two statutes criminalize virtually the same type of conduct, except Louisiana’s statute reads even more broadly than the North Carolina statute at issue in Packingham. The North Carolina statute in Packingham at least purported to have a modicum of narrow tailoring in that the statute was tailored to sex offenders who accessed “a commercial social networking web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal web pages.” N.C. Gen. Stat. Ann. Sections 14-202.5(a), (e) (2015). Despite its superficial narrow tailoring, the statute was still struck down. On the other hand, Louisiana’s statute has no narrow tailoring and criminalizes all “use” defined as “[creating] a profile on a social networking website or [contacting] or [attempting] to contact other users of the social networking website.” La. R.S. 14:91.5(B)(3). La. R.S. 14:91.5 sweeps so broadly that simply creating a Facebook profile or contacting, or attempting to contact, other Facebook members is criminalized, even if the Facebook user only communicates with adults. If North Carolina’s similar and more narrowly defined statute was invalid, an even stronger argument can be made that La. R.S. 14:91.5 is facially invalid on First Amendment grounds under the same rationale employed in Packingham due to La. R.S. 14:91.5’s broader reach.

          Second, the North Carolina statute that was struck down and that was at issue in Packingham defined a “commercial social networking Web site” as a website that meets four criteria, and La. R.S. 14:91.5 is similar to the North Carolina statute in criteria for how a “commercial social networking Web site” is defined. First, the North Carolina statute defined a “commercial social networking Web site” as one that “[i]s operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site.”  Section 14—202.5(b). Although La. R.S. 14:91.5 does not have this first criterion in its definition of what constitutes a “social networking website,” the difference is immaterial since virtually all social networking websites that are free to use, including Facebook, inherently derive revenue from advertising and other sources related to the operating of the web site. Second, the North Carolina statute defined a “commercial social networking Web site” as having the criterion of being a website that “[f]acilitates the social introduction between two or more persons for the purposes of friendship, meeting other persons, or information exchanges.” Id. Likewise, La. R.S. 14:91.5(B)(2)(a) states that “ ‘Social networking website’ means an Internet website, the primary purpose of which is facilitating social interaction with other users of the website…” Third, the North Carolina statute defined a “commercial social networking Web site” as having the criterion of being a website that “[a]llows users to create Web pages or personal profiles that contain information such as the name or nickname of the user, photographs placed on the personal Web page by the user, other personal information about the user, and links to other personal Web pages on the commercial social networking Web site of friends or associates of the user that may be accessed by other users or visitors to the website.” Section 14—202.5. Similarly, La. R.S. 14:91.5(B)(2)(a)(i) defines a “social networking website” as “an Internet website, the primary purpose of which is facilitating social interaction with other users of the website and has all of the following capabilities:  (i) allows users to create web pages or profiles about themselves that are available to the general public or to any other users…”  Fourth, the North Carolina statute defined a “commercial social networking Web site” as having the criterion of “[providing] users or visitors…mechanisms to communicate with other users, such as a message board, chat room, electronic mail, or instant messenger.” Section 14—202.5. Likewise, La. R.S. 14:91.5(B)(2)(a)(ii) defines a “social networking website” as “an Internet website, the primary purpose of which is facilitating social interaction with other users of the website and has all of the following capabilities: …(ii) Offers a mechanism for communication among users.”

            The North Carolina statute included two express exemptions to its definition of a “commercial social networking Web site”, and La. R.S. 14:91.5 follows a similar path. The first express exemption involved the North Carolina statute not reaching websites that “[p]rovid[e] only one of the following discrete services:  photo-sharing, electronic mail, instant messenger, or chat room or message board platform.” Section 14—202.5(c)(1). Similarly, La. RS. 14:91.5(B)(2)(b)(i) includes virtually the same exemption from the definition of “social networking website” by stating that “ ‘Social networking website’ shall not include any of the following:  (i) An internet website that provides only one of the following services:  photo-sharing, electronic mail, or instant messaging.” The second express exemption involved the North Carolina statute not reaching websites that have as their “primary purpose the facilitation of commercial transactions involving goods or services between [their] members or visitors.” Section 14—202.5(c)(2). Similarly, La. R.S. 14:91.5(B)(2)(b)(ii) includes virtually the same exemption from the definition of “social networking website” by stating that “ ‘Social networking website’ shall not include any of the following:  …(ii) An Internet website the primary purpose of which is the facilitation of commercial transactions involving goods or services between its members or visitors.” Louisiana’s statute additionally exempts news websites and government websites from its definition of “social networking website.”

           As the above analysis shows, because of the overwhelming similarities between the North Carolina statute and Louisiana statute, the Louisiana Supreme Court must inevitably strike down La. R.S. 14:91.5 as being unconstitutional on its face and in violation of the First Amendment of the United States Constitution as well as in violation of the analogous provision within the Louisiana Constitution. The U.S. Supreme Court decision in Packingham commands this result. 

                If you are ever charged with an alleged violation of La. R.S. 14:91.5, Unlawful Use of a Social Media Site, do not let your constitutional rights be potentially violated. Consider contacting an attorney who may be able to help you.
 
 
 

Blog post written by Attorney Philip B. Adams

            People often lie. We have all been lied to by someone at some point or another. Throughout my time in defending people charged with crimes in Louisiana, I have encountered many false accusation cases. Disappointingly, these false accusations are not uncovered by investigators in the beginning of the cases due to a failure to adequately investigate each case. Investigators in criminal cases have a duty to investigate whether a crime occurred and determine whether an accuser is telling the truth. Investigators must faithfully adhere to the presumption of innocence and seek to determine if guilt can be proven beyond a reasonable doubt. An investigator should never just take someone’s word at face value. After all, the job of competent investigation does not end once an allegation is made but rather is just beginning. To ensure that only the guilty are apprehended, an investigator has a moral and professional duty to remain impartial and unbiased. Considering the possibility that an accuser may not be telling the truth is one way to ensure that an investigator conducts a competent investigation in the search for truth in every criminal case. Unfortunately, not every accuser in a criminal case is truthful, and investigators must always look for red flags that indicate that an accuser is lying or distorting the truth. The following are some red flags to look for when investigating a criminal case and indicate the possibility of untruthfulness:

1. Motive:  Every person who brings a false accusation has a motivation to do so. While the existence of a possible motive to lie does not prove that a criminal allegation is false, a possible motive certainly provides ample reason to conduct further investigation to determine the truth or falsity of a criminal allegation.
2. History of mental illness:  Many people with mental illnesses do not lie and bring false accusations. However, mental illness can predispose a person to suffer from paranoia, to not be capable of distinguishing reality from fantasy, etc. and thus lead to a false accusation. Sometimes, complainants are psychotic or delusional and may make several different complaints that are often wildly implausible.
3. History of past false reporting:  A person who has a history of bringing false reports is someone who should be viewed with extreme skepticism by law enforcement officers when conducting an investigation. People who repeatedly bring false accusations lack a moral consciousness and tend to be highly manipulative. They can also present themselves as being highly believable. To avoid being duped by a serial false accuser, police should always run a criminal background check on every accuser in a criminal case and also run a check for all previous reports, complaints, and allegations brought by each accuser in every criminal case. While taking this extra step with each accuser will involve time and effort, the result will lead to fewer innocent people being victimized by serial false accusers.
4. Jealousy towards someone:  Sometimes, a false accuser is just jealous of another person and seeks to “level the playing field” by upending that other person’s life. Perhaps the other person got a great job promotion and makes more money, got married and the accuser is alone, is well liked by the community but the accuser is not, etc. The possibilities for jealousy are endless, and a flame of jealousy can lead to a false report and ruin another person’s life.
5. Recent break-up in a relationship:  This type of red flag is usually easier to spot than many other types of red flags. Often, when one partner ends a relationship, the person “dumped” may get angry or jealous and seek to get revenge. When passion and emotions mix with jealousy or anger, they often produce a toxic brew that leads to a false accusation. These accusations often arise in the context of one partner leaving a partner for someone else. One simple way to guard against this type of false accusation is for law enforcement officers to inquire about the relationship status of all accusers and witnesses. If, during an investigation, an officer learns that the accuser was dumped by the alleged perpetrator, the officer should be vigilant about conducting a detailed investigation to ensure that an innocent person is not roped into the justice system.
6. Recent failure/humiliation:  A person who brings false reports may have recently experienced a significant failure or humiliation, such as a job loss, an arrest, etc., and thus seek to restore self-worth, triggering a psychological desire to get even with the person(s) who initiated the failure or humiliation.
7. Problems with finances:  A person who is asset poor and/or debt heavy may have a strong desire to bring a false accusation against someone, especially someone who is of high income or status in society. This type of false accuser figures that he or she can then obtain money from the alleged perpetrator through the threat of criminal prosecution, the filing of a civil lawsuit, and/or media scrutiny.
8. Drug/alcohol/gambling addiction:  People who suffer from drug, alcohol, or a gambling addiction are often so consumed by the addiction that they battle that they will often stop at nothing to “get high” or get another “fix.” They figure that by bringing a false accusation they might obtain money or some type of material gain from the person accused to further satisfy the addiction.
9. Pressured reporting by a partner, family member, friend, or law enforcement officer:  Especially in cases involving serious crimes, such as murders, rapes, and molestations, witnesses being questioned by law enforcement officers can often feel intense pressure to lay blame on someone else in an effort to satisfy a coercive officer or an inquisitorial family member or friend. One sign of pressured reporting that warrants further investigation is a witness who is initially reluctant to report an alleged crime but later reports under pressure. Often, these witnesses make reports to provide an explanation for illegal behavior they have engaged in, explain lateness or staying out past a curfew, explain an absence, explain bad grades, explain an STD or pregnancy, etc.
10. A desire for sympathy or empathy:  Some people make false complaints to get attention or sympathy. They often desire attention or sympathy from friends, relatives, and/or authorities. These people usually have strong feelings of inadequacy and crave concern and support. They may have tried other ways of getting attention, like faking an illness, and been unsuccessful. They may then feel that by upping the ante, they are more likely to succeed in obtaining the sympathy that they seek.
11. Inconsistencies and embellishments in retellings:  Individuals who make false allegations often are unable to keep track of what story they have previously told. When being subjected to repeated questioning, these individuals may tell different versions of the same story each time they are asked. Often, the inconsistencies and embellishments in retellings are not minor but significant and internally contradictory.
12. Exact retellings:  Just as inconsistencies and embellishments in retellings can be indicative of false reporting, exact retellings can be too. If an alleged victim tells the same story multiple times in exactly the same way with the same details and evidence, these retellings may be indicative of rehearsal. Some minor variation in details is expected when recounting a story multiple times, so exact retelling is a red flag to watch for because it runs counter to how human psychology and memory recall generally operate.
13. Consistency with previously reported, similar crimes:  This red flag is similar to the red flag involving a desire for sympathy or empathy. Often, people with low self-worth may hear or read a crime complaint that previously occurred. They may then bring essentially the same accusation against someone and parrot media accounts because they don’t know real facts about a fake crime.
14. Inability to describe a suspect and/or crime:  An inability to give a description of one’s alleged attacker and/or give details about the alleged crime is a major red flag. Unless a victim was unconscious or mentally impaired, the accuser should be able to give some details about a suspect and/or crime that actually occurred.
15. Inconsistencies with other evidence in the case:  If an accuser’s account of an alleged crime is inconsistent with other evidence in a case, any inconsistency should be further investigated to determine if the inconsistency has a plausible explanation or is indicative of lying on the part of the accuser. For instance, if an accuser says that she was vaginally raped by a certain man, and he ejaculated inside her, but no sperm or DNA associated with that man is found inside the accuser by law enforcement officers, the accuser may be lying.
16. No witnesses/surveillance in the case even though witnesses/surveillance should exist:  If a witness reports having been victimized in a location where other people must have been present or surveillance was present, but no witnesses or surveillance can be found that corroborates the witness’s story, the witness may be lying. For example, if a witness says that she was robbed at a specific location in a grocery store and during a specific time range, and investigators determine that a surveillance camera was working and captured the location and duration of the alleged crime, but no crime was observed, the witness may be fabricating an allegation.
17. Injury to oneself, crime staging, and planted evidence:  Injury to oneself is often not apparent and can only be determined through the help of crime scene reconstruction and/or medical science. The same principle is true for crime scene staging. Discovering planted evidence also raises a serious red flag that demands extreme caution when evaluating the entirety of a case. Often, if one charge in a case involves planted evidence, the other charges in the same case may also involve planted evidence that may not be readily apparent absent further investigation. 

Blog post written by Attorney Philip Adams
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            Bam! You’ve just been in a vehicle accident. Perhaps you were hit from behind or hit from the side. You are full of adrenaline. Your heart is racing; your breathing is heavy; and your eyes are big with fright. After a few tense moments of trying to figure out what just happened, if you are lucky, you are able to muster some strength to open your driver door and exit your vehicle. You stumble out of your vehicle and look around. You see your damaged car, and you see the other driver and his car. Through no fault of your own, you now find yourself in a serious situation wondering what to do next.

            If you ever find yourself unfortunate enough to be involved in a vehicle accident, and you still have the physical capacity right after the accident to follow some crucial steps, you can help yourself have a potentially stronger legal case in the future. First, it may help if you contact law enforcement and/or emergency medical services as soon as possible. When you are full of adrenaline, you are in a physical state in which you may not yet fully realize the degree of any bodily damage that you may have sustained because of an accident. Trained and qualified personnel can help assess your physical damages, document the scene of the accident, question witnesses, and look for evidence. These personnel often have extensive experience in responding to vehicle accident scenes and will likely be more knowledgeable than you about how to properly assess the scene and deal with the situation.

             Second, it may help if you also document as much of the accident scene as possible. Unfortunately, not all law enforcement officers and/or emergency medical personnel who respond to the scene of your accident will be as thorough as needed. These personnel are often overworked, and some of them may cut corners in what is documented and/or forget to record crucial information in connection with your case. They may forget to turn on body cameras, forget to turn on dash cameras, forget to take witness statements, forget to obtain insurance paperwork, forget to take photographs, etc. Fortunately, however, in an age of smart phones, if you have one, you can help mitigate the effects of any shortsightedness, laziness, or forgetfulness on the part of any responding personnel by taking action into your own hands. You may benefit your legal case down the road by taking photographs and/or video footage of the accident scene, including street signs, vehicles involved, license plates, insurance papers, driver licenses, and people involved. If you are lucky, you may even be able to get the other driver to give a witness statement that you can record with your cell phone and/or a voice recorder. Importantly, a few minutes of your time upfront right after the accident will help to objectively document what the scene of the accident is immediately like. This immediate documentation may prove significant because a tow truck and/or police may later get involved and change the scene. You should document as much information as possible and not solely rely on other people. Your case may later benefit from the evidence that you obtain.

              Third, after you have contacted police and emergency medical personnel and documented as much of the accident scene as possible, you may benefit by contacting your automobile insurance carrier. In fact, most carriers require their insureds to notify them of an accident or risk possibly forfeiting coverage for a lack of notice. By contacting your insurance carrier, you help it to immediately start working on your behalf to assist in accident documentation, property damage appraisal of your vehicle, obtaining of a rental vehicle if your policy provides for one, assisting with medical payments, etc. However, it bears mentioning that because insurance companies have a strong incentive to minimize claim payouts to maximize their profits, even after you have fully cooperated with your insurer, you may benefit from the next recommendation.

                Fourth, after notifying your insurance carrier of the accident, it may be a good idea to immediately contact a personal injury attorney to assist you in evaluating the legal merits of your case and in working on your behalf to secure compensation for your damages. A personal injury attorney can work to recover money on your behalf for multiple damages stemming from your accident, including past and future pain and suffering, past and future lost income, past and future medical bills, etc. An experienced attorney can help you maximize compensation and ensure that you walk away from your case with deserved and full compensation, as opposed to a lower amount that an insurance carrier may offer you to pacify you.

                 Fifth, after following all of the above steps, you may need to obtain medical treatment on a regular basis to assist you in recovering from your injuries. It is important to be diligent in following the advice of your healthcare providers, not only for your personal health and long-term recovery but also for your case settlement down the road. If you avoid healthcare meetings and/or ignore the advice of your healthcare providers, you may open up defenses that the other side can use against you to minimize the value of your claim. Even more importantly, if you shortchange yourself in medical treatment, no amount of money may make up for the diminished quality of life that you may find yourself in because of an exacerbated or unhealed injury.

               In summary, you may help your car accident case by contacting law enforcement and medical personnel, by documenting as much of the accident scene as possible, by notifying your insurance carrier of the accident, by contacting a personal injury attorney, and by obtaining the medical treatment that you need. Diligence on your part may improve any eventual outcome in your case.

 Blog post written by Attorney Philip Adams:

           While an expungement does not destroy a record of arrest and/or conviction in a criminal case, an expungement does conceal such a record from public view by most people and entities. The concealing of a record benefits the person with the record in multiple ways, including by giving the person with the record peace of mind in knowing that fewer eyes will be able to see details about that person’s past, by opening potential job opportunities for the record holder who may have previously been unable to obtain a job due to having an easily accessible record, etc.

            Some people who have committed certain serious offenses in their past may not be aware of recent legislative changes that may afford them the opportunity to obtain an expungement with respect to those offenses. One recent change in Louisiana’s expungement laws occurred under Louisiana Code of Criminal Procedure Article 978(E) and allows individuals with convictions for aggravated battery, second degree battery, aggravated criminal damage to property, simple robbery, purse snatching, or illegal use of weapons or dangerous instrumentalities to obtain an expungement if certain conditions are met. This type of expungement can only be obtained if a contradictory hearing occurs between the person seeking the expungement and the state’s attorney. At such a contradictory hearing, the person seeking an expungement, through his or her attorney, must prove the following conditions:

       (a) More than ten years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole based on the felony conviction.
       (b) The person has not been convicted of any other criminal offense during the ten-year period.
       (c) The person has no criminal charge pending against him.
       (d) The person has been employed for a period of ten consecutive years.
 
Additionally, when filing the motion for an expungement for any of the previously mentioned offenses, the person must include a certification from the district attorney which verifies that, to his knowledge, the applicant has no convictions during the ten-year period and no pending charges under a bill of information or indictment. Finally, it bears mentioning that because all expungements are discretionary, trial court judges can deny a motion for expungement even if the above conditions are met, so there is never any guarantee that an expungement in such cases can ultimately be obtained. Despite such an uncertainty in outcome, expungements are still worth seeking for reasons previously mentioned.
 
            The requirements above might seem onerous because they basically require ten years of good conduct by the person seeking to have the record cleared. However, these requirements serve to protect the general public and make sure that before society allows such a person to move past a serious offense and conceal such serious offenses from access by the public, the petitioner has to first demonstrate that he or she is worthy of being given a second chance. Article 978(E) clearly strikes a balance between giving some serious offenders an opportunity to move on with their lives and in protecting the public’s right to continue accessing records relating to such offenses if those serious offenders don’t demonstrate good conduct over an extended period of time. 

 Author:  Attorney Philip Adams

​I have often been asked by prospective clients what they should expect from legal representation. Anyone seeking the advice of an attorney needs to ask this question to better understand how to select an attorney who can attempt to maximize the likelihood of obtaining a good result on behalf of the client. Commercials abound with attorneys who advertise services among their peers. Some of these attorneys may indeed offer good services. Some may not.  Some lawyers also  characterize themselves as being “aggressive” or “experienced.” However, being “aggressive” or “experienced” is just a small part of what it takes to attempt to be a successful attorney. In short, a highly skilled, humble, and disciplined fighter in a ring will almost always defeat a mindless, loud, and over-confident opponent. Beyond the fluff of television commercials and billboard ads, potential clients need to scrutinize a potential lawyer before making a monumental decision to hire someone who will often be tasked with making life-changing decisions on behalf of the client.  I think a client has the right to expect an advocate to have all of the following skills:

• Legal Knowledge.  Knowing the law in detail is an opportunity to gain an advantage in litigation and exploit issues to help a client. If you don’t know the rules (i.e., "the law"), you cannot possibly hope to have a chance of winning.
 
• Exceptional writing skills. Motions and briefs matter to judges. A well-written motion can mean the difference between a favorable or unfavorable ruling—a ruling that may destroy the opposition’s case. Words are the cardinal tools of persuasion that lawyers must use in persuading a judge to see things the lawyer’s way.
 
• Patience. An effective trial lawyer has to have patience—the patience to listen to a client, to find the relevant cases in support of a motion or brief, to re-read and analyze reports and evidence, and to deal with, at times, rude judges and opposing attorneys.
 
• Focus. Trying a case in a courtroom takes extreme focus. A lawyer must pay attention to his surroundings, including witness demeanor, inconsistencies in testimony, body language of jurors, the mindset of the judge, etc. A missed detail can often mean the difference between a successful outcome and an unsuccessful one.
 
• Integrity and honesty. These qualities cannot be faked for long. Developing trust with the client, with opposing counsel, with the judge, and with the jury is crucial. No lawyer, regardless of his or her skill level, can succeed for long without having integrity and honesty. Parties in the legal system instinctively know when a lawyer is being truthful. Distrusted lawyers have clients who may go to prison cells in criminal cases or who may walk home empty-handed after a negotiation in a civil case.
 
• Effective questioning skills. Good oratory, eloquence, and passion are the dessert. Cross-examination of witnesses is the main meal. Effective cross-examination can make or break a case. If the lawyer fails to discredit a witness or build a proper record, a motion hearing or trial can be lost. On the other hand, if the lawyer properly questions the testifying witness, he can weaken or outright destroy the opposition’s case.
 
• Tempered passion. Aggression and passion that are tempered by reason and perception form the foundation of attempted courtroom success.
 
• Charm and respect. Courtroom proceedings, and especially trials, can be tedious affairs. Jurors are often not allowed to talk, walk around, or hurry things. They’re trapped in a jury box. Many jurors may feel as if they’re being held hostage by the judge and the lawyers. Some jurors may even come to despise one or more lawyers. Additionally, the judge or opposing counsel may become irritated with a lawyer. The attorney who has a little charm, respect for those in the courtroom, and a sense of humor can ease tension and frustrations that may arise, better ensuring success on behalf of a client.
 
• Persistence and Resilience. A trial attorney deals with a lot of adversity in a courtroom. To be successful, an attorney needs to be able to deal with pressure and setbacks along the way. He must also possess a fighting and unbreakable spirit. If he doesn’t have these qualities, judges and opposing counsel will notice, possibly to the lawyer's detriment.
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• Communication ability. To convince a judge or jury to see one’s perspective requires argument and words that bring a case alive. The client’s story must be told as part of a larger picture, and the lawyer who can convey his client’s story more effectively has a higher chance of obtaining a successful outcome.
 
 At the Law Offices of Philip B. Adams, LLC, Mr. Adams and his staff pride themselves on daily working to hone their skills in each of the previously mentioned areas to try to deliver the best representation possible on behalf of clients. Our firm understands that success is never guaranteed in the legal system but believes that if we strive to improve ourselves in each of the previously mentioned areas, we may have a better chance of obtaining a successful outcome. Our firm does not seek to compete with other firms and attorneys but instead daily focuses on all of the previously mentioned qualities so that we can attempt to be a better law firm. Clients deserve nothing less. It is a privilege, not a right, to represent people who have legal issues. The law can best serve the ideal of maximizing justice within society when a lawyer and his support staff strive to live each of the previously mentioned values and skills. Our firm is committed to giving full effort on behalf of clients. 

some   Author:  Attorney Philip B. Adams
            Consider the hypothetical fact pattern that follows. You and a few friends have gone to the local bar to have a few drinks. A few hours later after “getting hammered” to unwind from a long day at work, you and your friends leave the bar and proceed to walk along the sidewalk outside the bar. You are undoubtedly drunk at this point but not creating a scene or disturbing anyone. Many people have probably been in this type of situation. However, most people probably have not experienced what happens next. Unexpectedly, after walking about fifty feet, you find yourself stopped by an overly eager police officer. Upon making contact with you, he immediately observes that you appear to be in an intoxicated condition. He proceeds to ask you questions. You slur your words. Your eyes are red and glassy. You display some symptoms of intoxication. Within about a minute, the overly eager police officer slaps handcuffs on you and tells you that you are under arrest for disturbing the peace for appearing in an intoxicated condition. Befuddled, you cooperate with the police officer, and he escorts you to his police unit to transport you to the local jail. Was your arrest by the police officer lawful? Did you actually commit a crime that warranted an arrest?
            To answer the preceding questions, one must first look at the language of the law under which you were arrested. Any crime must be defined in legal language and contains what are referred to as “elements.” Each of these elements must be proved beyond a reasonable doubt by the prosecuting authority for you to be found guilty of the crime alleged. For example, if a crime contains elements A, B, C, and D, but the prosecuting authority fails to prove element D, you are found not guilty because the prosecuting authority failed to prove the necessary element D. It does not matter if the prosecuting authority proved elements A, B, and C beyond a reasonable doubt. ALL elements of the enumerated crime must be satisfied.
            In the hypothetical fact pattern presented at the beginning of this post, the police officer arrested you for disturbing the peace by public intoxication. This crime is contained in Louisiana Revised Statutes 14:103A(3), which reads as follows
“§103.  Disturbing the peace
A.  Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public:
… (3)  Appearing in an intoxicated condition;
….”
 
As the language of the crime states, for you to be convicted of the crime of disturbing the peace by public intoxication, the prosecuting authority must prove beyond a reasonable doubt three elements:  (1) You in particular (2) appeared in an intoxicated condition (3) in a manner as would foreseeably disturb or alarm the public. Based on hypothetical fact pattern we discussed, elements “(1)” and “(2)” above can likely be proved beyond a reasonable doubt. However, can the prosecuting authority prove element “(3)” beyond a reasonable doubt as well? And as required to obtain a conviction? Based on the facts presented in the hypothetical fact pattern, no facts exist to indicate that you acted “in a manner as would foreseeably disturb or alarm the public” when you “appeared in an intoxicated condition.” For instance, you were not screaming and yelling while walking along the sidewalk in the presence of members of the public; you did not curse other members of the public while walking; you did not stumble onto any members of the public while walking; etc. Without facts to indicate that you acted “in a manner as would foreseeably disturb or alarm the public,” you cannot be convicted of disturbing the peace by public intoxication. Additionally, because the police officer arrested you without having any factual basis that rose to the level of probable cause to believe that you appeared not only in an intoxicated condition but also acted “in a manner as would foreseeably disturb or alarm the public,” your arrest for disturbing the peace by public intoxication was unlawful. In short, by just appearing in an intoxicated condition, you did not commit any crime justifying an arrest.
           
                Existing case law supports the above analysis.  Consider the following case:  State v. Smiley, 99-0065 (La. App. 4 Cir. 3/3/99), 729 So. 2d 743, writ denied, 99-0914 (La. 5/14/99), 743 So. 2d 651.  Smiley contains more egregious criminal action than occurred in the preceding hypothetical fact pattern; however, Smiley is still relevant because of the parallels between that case and the hypothetical case, as I will highlight in the discussion that follows.

               In Smiley, the Fourth Circuit held that police officers had reasonable suspicion to stop a defendant in a traffic stop but lacked probable cause to arrest the defendant for Disturbing the Peace by Public Intoxication, resulting in a seizure of cocaine from the defendant following a pat-down search incident to arrest being suppressed and excluded from use as evidence due to the unlawful arrest. Id. The following is a synopsis of the facts of the case: 
 
“The defendant was arrested on 18 September 1998. He was charged with the violation of LSA–R.S. 40:966(C), relative to possession of cocaine. On 11 January 1999 a motion to suppress the evidence was granted. The following facts were adduced at the motion:
In the early morning hours of 9 September 1998, two police officers were standing at the corner of St. Ann and Bourbon Streets when an unknown man approached them and reported that a man in a nearby truck had just tried to sell him drugs. As the officers were looking at the truck, they noticed the defendant and two other people leave the truck and stagger into a nearby bar. The unknown man identified Smiley as the man who tried to sell him drugs. The officers called for backup, and within five minutes four officers entered the bar and eventually located Smiley. Smiley agreed to accompany the officers outside. The officers noticed Smiley was having difficulty making his way out of the bar, staggering and weaving. One officer also got close to Smiley as he exited the bar and smelled alcohol on Smiley's breath. When they reached the sidewalk, the officer placed Smiley under arrest for public intoxication, purportedly to keep him from driving away in the truck. Smiley's companions must have also exited the bar because the officers conducted a patdown search of all three for the officers' safety. The officer testified that as one officer was pulling items out of Smiley's pants pocket, a bag of what was later found to be cocaine came out of his pocket.
The officer testified that when he approached Smiley in the bar, he asked Smiley to accompany him outside to talk because the bar was so noisy, and Smiley agreed to do so. He also testified that the bag seized from Smiley contained two-tenths of a gram of cocaine. He admitted neither he nor his fellow officers conducted a field sobriety test on Smiley.” 
Id. at 744.
 
The State argued on appeal that the officers had probable cause to arrest the defendant for public intoxication, evidenced by his inability to walk and the smell of alcohol when he left the bar in compliance with the request of law enforcement to do so. Id. The Fourth Circuit analyzed the facts as follows:
 
"Here, the officers requested that the defendant leave the bar with them to talk to them in a less noisy atmosphere. The officer testified he merely requested that they relocate outside, and the defendant willingly agreed to do so. There was no evidence presented to dispute the voluntariness of the defendant's agreement to accompany the officers outside, other than perhaps the specter of four officers converging on the defendant and his companions and asking them to step outside. Nor is there any indication that the trial court did not believe the officers' testimony. The defendant was not under arrest at the time he agreed to accompany them outside.
 
While they were exiting the bar, the officers noticed the defendant was again staggering. In addition, the officer testified he could smell alcohol on the defendant's breath. The officer testified that at that point, they decided to arrest him for “public intoxication” to keep him from reentering his truck and driving away while under the influence. The officer admitted, however, that he and his companions did not administer any field sobriety tests prior to arresting the defendant.
 
It is unclear under exactly what provision the defendant was arrested at that point. The only statute which could possibly apply would be LSA–R.S. 14:103, the disturbing the peace statute. Subpart A provides in part: “Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public: ... (3) Appearing in an intoxicated condition.” Here, there was nothing in the officer's testimony which should have led him to believe that the defendant's staggering would disturb or alarm the public. A more analogous provision could be §54–405 of the New Orleans Municipal Code, which provides: “It is unlawful for any person to appear in a public place manifestly under the influence of alcohol, narcotics or other drugs, not therapeutically administered, to the degree that he may endanger himself or other persons or property.” However, again there was nothing in the officer's testimony which indicated the defendant's actions at the time he was leaving the bar would endanger the public. The officer testified he arrested the defendant to keep him from entering his truck and driving while intoxicated. However, the officers did not know that the defendant would be leaving anytime soon or that if he were leaving that he would be driving his truck, given the fact that he had two companions with him who could possibly drive, and the officer gave no indication of their condition. Therefore, at the time the officers placed the defendant under arrest, there was no probable cause to arrest him. Thus, the subsequent search which produced the cocaine could not be validated as a search incident to his arrest.” 
Id. at 746.
 
              As you can see from Smiley, the parallels of that case are similar in some ways to the hypothetical fact pattern. In fact, Smiley involved worse facts than the hypothetical case, and yet the Fourth Circuit still held that there was no probable cause to make an arrest for the crime of Disturbing the Peace by Public Intoxication since there was no proof produced at the motion to suppress hearing that indicated that the defendant acted in a manner that “would foreseeably disturb or alarm the public.” Simply “appearing in an intoxicated condition” only satisfies one element of the crime of Disturbing the Peace by Public Intoxication; the prosecuting authority is also required to show that the defendant acted in a manner that “would foreseeably disturb or alarm the public.” If the Fourth Circuit felt that in Smiley “staggering” and “weaving” by a man walking out of a bar and smelling of alcohol did not constitute sufficient proof of a man acting in a manner that “would foreseeably disturb or alarm the public,” it is even less likely that in the hypothetical case enough facts existed for you to even be arrested for the crime of Disturbing the Peace by Public Intoxication.
 
            Unfortunately, some law enforcement officers may ignore the element of “foreseeably disturb or alarm the public” and throw handcuffs on people simply because they “appear in an intoxicated condition.” Being arrested under such a circumstance might be unlawful. If you or someone you know gets arrested for disturbing the peace by public intoxication, you may have a valid defense to the charged crime under such circumstanes. Don’t let a night meant to be relaxing turn into a charge that potentially results in a conviction because you don’t know that you may have a competent defense. Know your rights. 

Author:  Attorney Philip B. Adams

            The constitutionality of La. R.S 14:103A(2) is a nuanced issue that calls for considerable analysis. On its face, Louisiana Revised Statutes 14:103A(2) Disturbing the Peace (through use of profane words), as of 2019, reads as follows:
              “A.  Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb                or alarm the public:
               …
             (2)  Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street,               or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his               presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his                   lawful business, occupation, or duty; or
              …
          Amended by Acts 1960, No. 70, §1; Acts 1963, No. 93, §1; Acts 1968, No. 647, §1; Acts 1979, No. 222, §1; Acts              2006, No. 805, §1; Acts 2013, No. 30, §1, eff. May 29, 2013.”

            A statute (i.e., “law”) can be unconstitutional on its face (i.e., in its entirety) and/or unconstitutional as applied to the context of a particular person’s case. I believe that Louisiana Revised Statutes 14:103A(2) is unconstitutional on its face and as applied. For the purpose of illustration, consider the following hypothetical fact pattern. Suppose a law enforcement officer is told by a person “You’re an asshole.” because that person is upset by something the officer did. That person doesn’t scream and yell these words in public. He simply mutters these words in a normal tone of voice in the presence of the officer. Enraged by what he perceives as an affront to his authority, the officer handcuffs the person for having violated Louisiana Revised Statutes 14:103A(2)(Disturbing the Peace Through Profane Words), thereby arresting him. That person is then transported to jail. Can that person be validly prosecuted under La. R.S. 14:103A(2)? In other words, is it constitutional to arrest an individual under such a fact pattern? The following legal analysis will explore this interesting question in detail.

         The constitutional guarantee of freedom of speech forbids the States from punishing the use of words or language not within “narrowly limited classes of speech.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Even as to such a class, however, because “the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,” Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958), “(i)n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,” Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP ‘ Button, supra, 371 U.S., at 433, 83 S.Ct., at 338.
 
              Great care must be taken in the regulation of spoken words to punish only classes of speech not protected by the First and Fourteenth Amendments to the United States Constitution, viz., “the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words—those which by their very utterance inflict injury and tend to incite an immediate breach of the peace.” Chaplinski v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Only “fighting words-those which by their very utterance inflict injury and tend to incite an immediate breach of the peace,” are punishable. White v. Morris, 345 So.2d 461 (La.1977), citing Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Words not considered “fighting words” are constitutionally protected expressions. In addition, when such words are addressed to a police officer, the State must produce a stronger showing that the words are such as to incite the addressee to an immediate breach of the peace. City of New Orleans v. Lyons, 342 So.2d 196 (La.1977); Norrell v. City of Monroe, 375 So.2d 159 (La.App. 2d Cir.1979); White v. Morris, supra; State in Interest of W.B., 461 So.2d 366 (La.App. 2d Cir.1984). As found by the court in Lyons, supra, police officers are expected to exercise more restraint than others and insulting language is less likely to cause a breach of the peace and fall within the “fighting words” exception to protected speech. See also Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974). The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. “Speech is often provocative and challenging.... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949).
 
           Statutes must be carefully drawn or authoritatively construed so as to be insusceptible of application to protected expression; failing this, they are unconstitutionally overbroad. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). La. R.S. 14:103A(2) currently punishes only spoken words. It can therefore withstand a facial constitutional attack only if, as authoritatively construed by the courts of Louisiana, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments to the Constitution of the United States. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed. 284 (1972). Even if the statute was construed as punishing conduct, conduct is often a means of expression, and the same analysis would apply. Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 408 (1972).
 
                “It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when ‘no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,’ Dombrowski v. Pfister, 380 U.S. 479, 491, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22 (1965), the transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity,‘ id., at 486, 85 S.Ct., at 1121. . . .” Gooding v. Wilson, 405 U.S. 518, 520-21, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression. Id.

              Only a statute that is substantially overbroad may be invalidated on its face. New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982); Broadrick v. Oklahoma, supra. “We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application....” Id., at 630, 93 S.Ct., at 2925 (Brennan, J., dissenting). Instead, “[i]n a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982); Kolender v. Lawson, 461 U.S. 352, 359, n. 8, 103 S.Ct. 1855, 1859, n. 8, 75 L.Ed.2d 903 (1983). Criminal statutes must be scrutinized with particular care, e.g., Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948); those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application. E.g., Kolender, supra, at 359, n. 8, 103 S.Ct., at 1859, n. 8.
 
              In Adams, the Louisiana Supreme Court struck down an earlier version of La. R.S. 14:103A(2).  State v. Adams, 263 La. 286, 288, 268 So. 2d 228, 228 (1972). In that case, the defendant moved to quash a bill of information on the ground that the statute La.R.S. 14:103A(2) was unconstitutional and void on its face. Adams was charged with violating La. R.S. 14:103A(2) in that he: “did use unnecessarily loud, offensive and insulting language in such a manner as would foreseeably disturb and alarm the public.” The trial judge ordered that the information be quashed, and the State appealed. Id. The Louisiana Supreme Court held that La.R.S. 14:103(A)(2) on its face subjected persons exercising their constitutional right of expression to fear of criminal sanctions and was a curtailment of that right. Therefore, the statute was declared unconstitutional as being overly broad, and the trial court’s judgment that quashed the bill of information was upheld. Id. at 229.
 
            In Ganch, a Bill of Information was filed charging defendants with disturbing the peace in violation of La. R.S. 14:103A(7), as it read at the time, in that they “committed an act in such a manner as would foreseeably disturb and alarm the public.” State v. Ganch, 263 La. 251, 253, 268 So. 2d 214, 215 (1972). The information was quashed on motion of the defendants on the grounds that the statute under which they were charged was unconstitutional on its face. The State appealed. Id. Ultimately, the Court held that the statute on its face was susceptible of application to expression protected by the Louisiana Constitution (Art. 1, Sec. 3) and the First Amendment of the U.S. Constitution. Id. at 254.
 
            In Gooding v. Wilson, the United States Supreme Court struck down a Georgia state statute in its entirety. Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972). The Georgia statute in question provided that “(a)ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor” and had not been narrowed by the Georgia courts to apply only to “fighting” words “which by their very utterance . . . tend to incite an immediate breach of the peace,” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031.  Id. at 1104. The defendant in the case had been convicted for saying to a police officer, who was attempting to restore access to a public building, “White son of a bitch, I’ll kill you” and “You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces.”  Id. at 1112. The United States Supreme Court set aside the defendant’s conviction because the Georgia state statute was unconstitutionally overbroad and vague on its face in violation of the First and Fourteenth Amendments.  Id. at 1103. The dictionary definitions of words like “opprobrius”, “abusive”, and “breach of the peace” in the statute indicated that the statute swept too broadly and made it a crime merely to speak offensive words to someone who hears them. Id. at 1106-1108.
 
            In Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), the United States Supreme Court held invalid, because it violated the First and Fourteenth Amendments of the United States Constitution, an ordinance that declared it unlawful and a breach of the peace for any person “wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.” There was a mother in a pickup truck following a police car which was taking her son to the station after his arrest. A second police car stopped the truck, and the mother and the policeman from this car confronted each other. The policeman arrested her for violating the above ordinance when she “started yelling and screaming (about her son) and . . . wanted to know where he was . . . (She called the policeman) ‘you god damn m.f. police—I am going to (the Superintendent of Police) about this.’” See footnote one, at 131, 94 S.Ct. 971. The Louisiana Supreme Court held the quoted language to be in the category of “fighting words” and therefore outside the protection of permissive free speech afforded by the First Amendment. However, the Supreme Court of the United States held the ordinance in question to be “constitutionally overbroad” in that it could be applied to protected speech and reversed the conviction since the statute was void on its face. In reaching this result, the U.S. Supreme Court, however, did not pass on whether the statute was unconstitutional as applied (i.e., whether the quoted language was properly categorized by the Louisiana Supreme Court as not being protected speech) because it noted that it was “immaterial whether the words appellant used might be punishable under a properly limited statute or ordinance.” See at 133, 94 S.Ct. 972. However, in a concurring opinion, one Justice reached the issue of the character of the quoted language in these words:
 
“It is unlikely, for example, that the words said to have been used here would have precipitated a physical confrontation between the middle-aged woman who spoke them and the police officer in whose presence they were uttered. The words may well have conveyed anger and frustration without provoking a violent reaction from the officer. Moreover, as noted in my previous concurrence, a properly trained officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.’ (Gooding v. Wilson), 408 U.S. 913, 92 S.Ct. 2499, (33 L.Ed.2d 321). See Model Penal Code s 250.1, Comment 4 (Tent. Draft No. 13, 1961).'”  
 
At 130, 135, 94 S.Ct. 970, 973.
 
              Indeed, the majority opinion of the U.S. Supreme Court noted in a footnote that trained police officers were held by some authorities to a “higher degree of restraint than the average citizen” in avoiding physical retaliation even to “fighting words.” See Footnote two, at 132, 94 S.Ct. 972. Relying upon Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), the United States Supreme Court found that the statute under consideration, by its terms, was not limited to words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Id. at 972. Since the proscribed conduct was not limited to fighting words that constituted an exception to freedom of expression, the statute was found facially overly broad and constitutionally impermissible because it was susceptible of application to protected speech.
 
            In our hypothetical fact pattern discussed in the beginning of this analysis, our defendant has been charged with violating La. R.S. 14:103A(2), Disturbing the Peace, which reads as follows:
 
“A.  Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public:
…
(2)  Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty[.]”
 
La. R.S. 14:103A(2) on its face subjects persons exercising their constitutional right of expression to fear of criminal sanctions and is a curtailment of that right. The Louisiana Supreme Court has not limited the statute in application to expression which is not protected by the Louisiana Constitution under Article 1, Section 3 and the First Amendment and Fourteenth Amendment of the U.S. Constitution; in other words, La. R.S. 14:103A(2) has not been limited in application to “fighting words” or those which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The broad and vague dictionary definitions of words like “offensive”, “derisive”, “annoying”, “noise”, and “exclamation” in the statute indicate that the statute is substantially and frighteningly overbroad and makes it a crime merely to speak words to someone who hears them and disapproves of them. In fact, the language of La. R.S. 14:103A(2) is remarkably similar to statutory language found to be overbroad and vague in cases like Adams, Ganch, Gooding, and Lewis, supra. Given its wording, La. R.S. 14:103A(2) is broadly susceptible of application to protected speech and because the statute reaches such a substantial amount of protected speech, it is facially unconstitutional.
 
            Even if La. R.S. 14:103A(2) is not facially unconstitutional, it is unconstitutional as applied within the context of our hypothetical for the reasons that follow.
 
              In Fields, Deputy Fields and Marshal Wright testified that Peggie Dunn used profane language (without specifying what words) in her initial statement toward the officers. Malone v. Fields, 335 So. 2d 538, 541 (La. Ct. App. 1976). Without resolving the issue of fact, the appellate court assumed that her language did contain some curse words. Id. After citing observations of higher courts on the issue of freedom of speech, the appellate court also stated that it did not view the language and the actions of Mrs. Peggie Dunn as constituting either the crime of resisting an officer (R.S. 14:108) or the crime of criminal mischief (R.S. 14:59). Id. at 543.
 
                In a later case, the Louisiana Supreme Court, after considering Lewis, supra, held that Section 42—24(5) of the Code of the City of New Orleans that referred to “obscene, abusive (and) insulting” language was unconstitutional. City of New Orleans v. Lyons, 342 So. 2d 196 (La. 1977). Section 42—24(5) provided that “Disturbing the peace is the intentional performance of any of the following acts:  …(5) Using obscene, abusive or insulting language directed to or in the presence of any police officer who is performing his duty in making an arrest, detaining, or questioning any person.” The court held that Section 42—24(5) was broad enough to cover words which do not “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” In other words, the statute covered not just “fighting words”, which are not protected speech, but also covered protected speech.  The words (“S____” and “F_____ Y______.”) uttered by the defendant in that case to an arresting officer when analyzed in context, were found to be protected speech. There was no evidence to show, nor did the context suggest, that the defendant's remarks tended to incite the police officer to an immediate breach of the peace. In fact, when such words are addressed to an officer, the court found that one would normally contemplate the need for a stronger showing that the words tend to incite the addressee to an immediate breach of the peace. Thus, there was lacking in that case the clear and present danger necessary in order to justify the state's interference with defendant's right to speak freely. Id. at 198.
 
             In Morris, the Louisiana Supreme Court addressed whether a boy’s refusal to identify himself or his response to an inquiring officer that he did not have to “give no damn I.D.” provided grounds for a legal arrest. White v. Morris, 345 So. 2d 461, 463 (La. 1977). The lower court of appeal had already ruled that the defendant's action in cursing the deputies constituted a clear violation of La. R.S. 14:59(7), which provided at the time that “Criminal mischief is the intentional performance of any of the following acts: …(7) Acting in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others”. After referencing City of New Orleans v. Lyons, supra, the Louisiana Supreme Court reiterated that abusive and profane words directed towards police were constitutionally protected speech. The Louisiana Supreme Court ultimately held that La. R.S. 14:59 was inapplicable to the defendant’s conduct and that his arrest could not be justified on that ground or any other ground. Id. at 465.
 
               In Norrell, Norrell told the police officer, who might have had sufficient reasonable suspicion under C. Cr. Proc. Art. 215.1 to demand an explanation of what Norrell was doing sitting near the ditch in a residential area before daylight, to “get the g_____ d_____ m_____ f_____ [light] out of my eyes” and when the officer told the defendant to stand up, the defendant stated “F___ Y___” to the officer. Norrell v. City of Monroe, 375 So.2d 159 (La.App. 2d Cir.1979). The Second Circuit noted in Norrell that the cursing of a police officer by a citizen does not justify an arrest for disturbing the peace, for resisting an officer, or for criminal mischief: 
 
“[Norrell's words and] actions may have justifiably angered the officer as an affront to his authority, [but this] did not constitute criminal activity.” Id. at 161.
 
           In State in the Interest of W.B., the Chief of the Winnsboro City Police responded to a call about a disturbance at the home of a woman. State in the Interest of W.B., 461 So.2d 366, 367 (La.App. 2d Cir.1984). When he got ready to depart, he saw several people, including W.B., in the back of a yard across the street. The chief approached, and an argument ensued between the chief and W.B. in which W.B. extensively cursed the chief, including calling him a “G_____ D_____ white M_____ F_____”. Id. at 367-368. The Second Circuit held that W.B.’s words were within the realm of protected free speech and not within the “fighting words exception” to constitutionally protected freedom of speech and for that reason did not constitute criminal activity. Id. at 369.
 
            In Woolverton, a defendant was charged by bill of information with a violation of La. R.S. 14:103A(2) in that:  “he did willfully and unlawfully disturb the peace using obscene, abusive and threatening language, in such a manner as would foreseeably disturb and alarm the public…” State v. Woolverton, 474 So. 2d 1003, 1005 (La. Ct. App. 1985). At the time of the offense, La. R.S. 14:103A(2) provided in pertinent part: 
 
“A. Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public:
…​
(2) Addressing any offensive, derisive or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business, occupation or duty....”  Id.
 
Deputy Bradley and Deputy Ragsdale testified that Mr. Woolverton caused a disturbance during an eviction by being “argumentative”, by “complaining”, by “cursing” the officers, by not “shut[ing] up”, and by “using a little profanity.”  Id. at 1005-1006. Accordingly, the deputies placed him under arrest. Id. at 1005. Citing First and Fourteenth Amendment case precedent by the United States Supreme Court and case precedent by the Louisiana Supreme Court, the Fifth Circuit Court of Appeal for Louisiana reversed Mr. Woolverton’s conviction for La. R.S. 14:103A(2) because it found that the defendant’s behavior did not constitute sufficient cause for his arrest for disturbing the peace, and thus the State failed to prove beyond a reasonable doubt the elements of the crime charged. Id. at 1006.
 
              In Hill, a defendant was charged for violating an ordinance by shouting at police in an attempt to divert their attention from his friend during a confrontation. City of Houston, Tex. v. Hill, 482 U.S. 451, 451, 107 S. Ct. 2502, 2504, 96 L. Ed. 2d 398 (1987). The ordinance made it unlawful “for any person to…in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty.” Code of Ordinances, City of Houston, Texas Section 34—11(a) (1984). Ultimately, the United States Supreme Court struck down the ordinance as being unconstitutionally overbroad under the First Amendment.  Id. In its reasoning, the Court reflected that
“Today's decision reflects the constitutional requirement that, in the face of verbal challenges to police action, officers and municipalities must respond with restraint. We are mindful that the preservation of liberty depends in part upon the maintenance of social order. Cf. Terminiello v. Chicago, supra, 337 U.S., at 37, 69 S.Ct., at 910 (dissenting opinion). But the First Amendment recognizes, wisely we think, that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive.”  Id. at 471-472.
 
            In Cox, defendants were convicted of city ordinance misdemeanor charges for disturbing the peace and resisting arrest, but the defendants appealed. City of W. Monroe v. Cox, 511 So. 2d 1200, 1200 (La. Ct. App. 1987). The Louisiana Second Circuit Court of Appeal found that the language of the city ordinances was similar to the language of La. R.S. 14:103A(2) & 108. Id. West Monroe Police Officer Perkins testified that he had written one or more offense tickets arising out of a traffic violation by Paul D. Cox about 9:00 p.m. before the incident occurred the next morning that resulted in the charges that were the subject of the appeal. About 2:30 a.m. the next morning, Perkins was alone in the radio room of the police station working in relief of the radio operator when Paul Cox and his brother, Bill, entered the public lobby of the station and walked up to the counter. Perkins left the adjacent radio room and walked to the opposite or private side of the counter to answer their inquiries. The counter was 25 feet from the front door of the station. Perkins related his version of the incident:
 
“[Paul Cox] said he wanted my name and I told him it was on ... my report, which he could get a copy of. And, he said he ... didn't want to wait for the report, he wanted my name, so I gave it to him.
 
What was his response ...?
 
I think he asked me how to spell [my name] ... And then he said ... ‘I'm going to have you up on charges bubba’
... I said I didn't care.
 
And what did he say?
 
[He said] ‘Shove it up your goddamn ass,’ and [he] turned around and walked out.
... [His words] annoyed me.
 
What did you then do?
 
Had to go outside the police station to, to try, he was walking out and I went outside the police station to stop him and arrest him ... for loud and profane language ... disturbing the peace. ... Well, he was already, there's two doors out, there an inner door and an outer door. He was at the outer door just outside of it. As I came through, I told him, hold it, he was under arrest. ... [f]or cussing, That's what I said, for cussing. I didn't say loud and profane language, I said cussing.”

Id. at 1201.
 
Ultimately, after citing First Amendment case precedent, the Second Circuit Court of Appeals found that the defendant’s actions did not constitute the crime of disturbing the peace. Id. at 1203.
 
                 In McCoy, a defendant was charged by separate bills of information with disturbing the peace, in violation of La. R.S. 14:103A(2) and (3), and with resisting an officer, in violation of La. R.S. 14:108. State v. McCoy, 546 So. 2d 240, 241 (La. Ct. App. 1989). At the time of the defendant’s arrest, La. R.S. 14:103 read as follows:
 
Ҥ 103. Disturbing the peace
 
A. Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public:
…
(2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty; or
(3) Appearing in an intoxicated condition * * *.”
 
Id. at 242.
 
At trial, the officers testified that the defendant used “profanity and vulgarity.” The only phrases they reported to the trial court were “m----- f-----” and “damn.” Ultimately, the Second Circuit Court of Appeal for Louisiana held that the State failed to prove that the phrase “m---- f-----” was addressed to anyone and thus could not meet an essential element of La. R.S. 14:103A(2) that prohibited words addressed “to any other person.” Id. at 243. However, the Second Circuit also stated that even if it were to conclude that the phrase “m---- f----” was addressed to the deputies, it would fall into a category of constitutionally protected speech. See Footnote 1 of the opinion.
 
            In Murray, Mr. Murray was arrested and charged with disturbing the peace and flight from an officer. Murray v. Town of Mansura, 2006-355 (La. App. 3 Cir. 9/27/06), 940 So. 2d 832, 839, writ denied, 2006-2949 (La. 2/16/07), 949 So. 2d 419. Disturbing the Peace was defined in part at the time as
 
“[T]he doing of any of the following in such manner as would foreseeably disturb or alarm the public:
....
(2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty[.]”
 
Id. at 839-840.
 
Chief Lucas testified at trial that Mr. Murray was “aggressive” in his actions and that he “cursed”, but he did not testify as to the specific language Mr. Murray used. Id. at 840. In light of the jurisprudence regarding the higher standard applicable to police officers with regard to insulting language and the First Amendment, the Third Circuit Court of Appeal found no error with the trial court’s conclusion that Chief Lucas did not have probable cause to arrest Mr. Murray with respect to his actions and language in relation to Chief Lucas or his officers. Id.
           
            In our hypothetical fact pattern, our defendant was arrested for violating La. R.S. 14:103A(2) because he muttered “You’re an asshole.” to a police officer. He did not make a physical threat or take physical action towards the officer. He simply became flustered and uttered a curse word to the officer. In response, the officer got angry because of an affront to his authority and took the defendant into custody.
 
           Essentially, the basis for our defendant’s arrest was because he used the word “asshole.”  The expletive “asshole” that he used is mild and arguably even less offensive in comparison to speech that has been upheld as being protected in numerous other cases:  City of New Orleans v. Lyons (“S____” and “F_____ Y______.” to arresting officer), supra; Morris (a boy’s response to an inquiring officer that he did not have to “give no damn I.D.”), supra; Norrell (the defendant stated to the officer to “get the g_____ d_____ m_____ f_____ [light] out of my eyes” and when the officer told the defendant to stand up, the defendant stated “F___ Y___” to the officer), supra; State in the Interest of W.B. (defendant extensively cursed the police chief, including calling him a “G_____ D_____ white M_____ F_____”), supra; Woolverton (defendant caused a disturbance during an eviction by being “argumentative”, by “complaining”, by “cursing” the officers, by not “shut[ing] up”, and by “using a little profanity”), supra; Cox (defendant stated to police officer to “Shove it up your goddamn ass”), supra; McCoy (appellate court noted that even if the words “m----- f-----” and “damn” had been specifically addressed to deputies, those words would have been protected speech), supra; Murray (no probable cause to arrest even though defendant was “aggressive” and “cursed”), supra. The use of the word “asshole” in the hypothetical situation described falls within constitutionally protected speech. As found by the court in Lyons, supra, and other cases, police officers are expected to exercise more restraint than others, and insulting language towards them is less likely to cause a breach of the peace and fall within the “fighting words” exception to protected speech. The events in the hypothetical constitute at best a mild affront to the officer’s authority and not a valid crime, especially given the higher standard of restraint law enforcement officers are expected to exercise. To hold otherwise would criminalize even mild verbal disapproval of police action and erode vital and significant First Amendment freedoms. Given the facts of this particular hypothetical and existing case law, our hypothetical defendant’s actions and words undoubtedly fall within protected speech. Accordingly, La. R.S. 14:103A(2) is unconstitutional as applied within the context of this case.
 
               As you can see from the above analysis, determining whether a law is unconstitutional in a criminal context is complex. Do not allow your free speech rights to potentially be violated. If you or someone you know has been arrested for having violated Louisiana Revised Statutes 14:103A(2), you may need legal advice. 
 
 
 

Author:  Attorney Philip B. Adams

​I have often been asked by clients and non-clients what I think the most important aspect of a criminal defense case is. Most people I’ve encountered who have asked me about this question think that the trial is the most significant stage of any criminal case. Nothing could be further from the truth.

If one even occurs, a trial is simply the culmination of months of hard work, preparation, multiple court hearings, client meetings, witness interviews, etc. A trial is tantamount to a play being performed after all of the work that came before the play by all involved parties. A jury will never know how much work went into a given case. Many jurors may naively think that lawyers just spontaneously question witnesses and present evidence with little to no preparation.

In my opinion, which is based on experience in successfully defending clients in criminal cases against seemingly overwhelming odds, the most important aspect of any criminal case is the investigation stage. However, not just any investigation will suffice in a criminal case. To be successful, an investigation in a criminal case must be thorough and meticulous. No stone must be left unturned. 

In working each criminal case that I take on, I spend the majority of my time in the investigation stage of the case. Why do I allocate a majority of my time in the investigation stage? A meticulous investigation can be the decisive factor in determining whether a defense succeeds or fails. A single piece of evidence can destroy the prosecution’s case. 

When I do arrive in court for the first time, I am confident that I know more about my case than the prosecutor does because I know that I spent far more time in the investigation stage in proactively building the foundation for the house that I will call my client’s defense. Unlike the typical prosecutor, I don’t just take the words of police officers at face value as written in police reports. I listen to my clients and grill them with questions to learn everything that I can about what happened that eventually led to handcuffs being slapped on them. I make it a point to investigate each witness involved and learn about personal and criminal backgrounds. I issue numerous subpoena duces tecums for documents, audio recordings, surveillance footage, body camera recordings, dashcam recordings, police reports, etc. before even the first court date arrives. I hire investigators to search for additional evidence if I have a lead that suggests potentially useful evidence may be uncovered through searching. I have these same investigators interview and record witnesses as appropriate. I have learned all too often, for instance, that what is written down and claimed by police officers as being reality conflicts with what my investigators are told by the same witnesses that were previously interviewed by police.

Spending a lot of time in the investigation stage has paid big dividends on behalf of many of my clients. I’ve had many cases, including serious felonies, dismissed outright due to the work I did at the investigation stage. Most of these former clients would agree that a dismissal obtained by proactive work was much more preferred than the stress of an unnecessary trial. In many cases that weren’t dismissed, I’ve uncovered new evidence unknown to the prosecutor that substantially undermined the strength of the state’s evidence. This new evidence later allowed me to work out highly desirable resolutions because my clients had greater leverage. Regardless of any specific outcome, focusing on the investigation stage of the case led to a better result on behalf of the client. 

No one’s liberty should be handled lightly. Unfortunately, I’ve had many clients come to me for representation after having been ignored by previous lawyers or after having been told that a plea deal was “a good offer” even though no defense investigation had taken place. Defending those accused of a crime is a privilege and not an entitlement, and accused individuals should feel confident that those who represent them strive to give real meaning to the Bill of Rights embodied in our state and federal constitutions.
 
If you or someone you know needs an attorney who will “get to the bottom of things” and vigorously investigate your case with care and diligence, hire the right advocate. Visit our “Contact Us” link and contact attorney Philip B. Adams with the Law Offices of Philip B. Adams, LLC to schedule an initial consultation. 

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