Louisiana’s Age Authentication Mandate Avoids Constitutional Scrutiny Using a Legislative Drafting Trick–Free Speech Coalition v. LeBlanc

You may have heard of this legislative drafting trick before. The legislature passes a law that’s likely unconstitutional, but the law doesn’t provide for enforcement by any state actors. Instead, the law creates a “bounty” system that rewards bounty hunters for privately enforcing the law.

It is theoretically possible that bounty-based private litigation is the best way to enforce a law, but in practice those situations are rare or non-existent.

The scheme has countless downsides. It creates the possibility of multitudinous and duplicative enforcement, all of which may be unconstitutional. The costs of defending those lawsuits is a financial punishment with censorial consequences, even if the defendant never violated the law. The bounties motivate bounty hunting solely for the payoff, not because their enforcement produces any social good; and the bounties can create and support a class of trolls who bring abusive litigation solely to extract undeserved financial payoffs.

Alternatively, it’s possible no bounty enforcements ever occur. Yet, the regulated entities will still comply with the (likely unconstitutional mandate) to reduce their financial exposure. Systemic non-enforcement can turn the law into a “ghost law” that casts a shadow over the industry, like a sword of Damocles, and redirects corporate resources towards unconstitutional outcomes. This is especially a risk with bounty laws of dubious constitutionality, where the prospective enforcer doesn’t want to spend the time and money to bring an enforcement, and then defend against the inevitable constitutional challenge, knowing that it’s likely to lose when the law finally gets a judicial vetting. These laws instead sit unused on the books as a drain on society’s resources.

Indeed, usually there is one–and only one–reason to adopt a bounty enforcement mechanism. The Supreme Court has held, so far, that the constitutionality of a bounty-based law cannot be challenged prospectively when there’s no risk of government enforcement. Instead, any constitutional challenge will be timely only if/when a bounty claim is filed in court. In other words, a bounty system gives the law a “get-out-of-Constitutional-review-free” card that protects it from its inevitable fate.

Thus, when you see a bounty-enforced law, assume the government has enacted an unconstitutional law but wants to hide it from a constitutional challenge. Further assume there is absolutely no other policy benefits to the legislature’s approach. It’s a prime example of how a legislature may seek to undermine its constituents’ interests, not improve them.

* * *

This case involves Louisiana R.S. ยง 9:2800.29, effective Jan. 1, 2023. The law closely tracks the Child Online Protection Act (COPA) that Congress passed in 1998. The Supreme Court largely struck down COPA as unconstitutional in 2004. Since then, it’s been assumed that COPA-like laws are unconstitutional, especially if they require age authentication. Recent caselaw reinforces that intuition (1, 2).

Like COPA, Louisiana’s law requires online publishers of “harmful to minors” material to age-authenticate all of its users and block minors from accessing its content. Yet, the court says it evades prospective constitutional challenge. The court explains why no state actor is responsible for enforcing the law, so the plaintiffs lack Article III standing.

As a result, the legislative trick worked as intended, giving the law a free pass from constitutional scrutiny even though it coerces regulated entities to change their behavior or risk ruinous litigation. Another unconstitutional ghost law wreaking havoc.

The Supreme Court (or Congress, if it can) needs to permanently end this drafting trick. Meanwhile, if you see a legislature passing a bounty law, you probably should assume the worst about its intentions.

Case Citation: Free Speech Coalition, Inc. v . LeBlanc, 2023 WL 6464768 (E.D. La. Oct. 4, 2023)