Could the New Orleans district attorney contract for a website and sell ads on it?

Plain-English summary

The New Orleans District Attorney's Office considered a contract under which a company would create and own its official website, sell front-page advertising, and share ad revenue with the office. In Opinion 03-0260, the AG said a website contract could fall within the district attorney's inherent authority if the website was necessary for carrying out constitutional duties. The opinion also found no statute prohibiting the office from selling ads on its official site.

The AG left important questions unresolved. It said defense-lawyer advertising might be characterized as assisting criminal defense, which the state constitution prohibited the district attorney from doing. But selling ads might also create a public forum, potentially affecting which lawful advertisers could be excluded. The opinion treated both points as possibilities, not a categorical ruling on defense-lawyer ads. It found no statute requiring the proposed advertising revenue to be turned over to New Orleans or another city or state agency.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant at issuance

District attorney's office

The AG linked authority to contract for a website to a determination that the site was necessary to the office's constitutional duties. It found no statutory bar on selling website ads and no identified rule requiring the office to remit that ad revenue to another government agency.

Prospective advertisers

The opinion did not decide whether criminal defense attorneys could advertise on the site. It identified both a possible state constitutional objection and a possible First Amendment public-forum issue if ad space was sold.

Common questions

Q: Could the district attorney hire a company to create its official website? A: The AG said that contract would be within the office's inherent authority if the website was determined necessary to perform its constitutional duties.

Q: Was selling ads on the site prohibited by a Louisiana statute? A: The opinion found no statute authorizing or prohibiting the sale and concluded that the district attorney could sell ads because it was not prohibited by law.

Q: Were ads by criminal defense lawyers definitely allowed or barred? A: The AG did not resolve that question. It identified a possible ban on assisting criminal defense and a possible public-forum issue affecting exclusions.

Q: Did ad revenue have to go to the City of New Orleans? A: The AG found no requirement in the district attorney funding statutes to pay website advertising revenue to the city or another city or state agency.

Background and statutory framework

The request described company ownership of the site's pages and intellectual property, with shared advertising revenue. The AG considered the district attorney's constitutional duties, limits on assisting criminal defense, public-funds advertising rules, and possible First Amendment forum consequences. It distinguished website advertising revenue from fines, forfeitures, and licensing fees addressed by the cited district attorney funding statutes.

Citations and references

Statute cited: R.S. 43:111.1.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0260

Original opinion text

One American Place
301 Main Street, Suite 600
DEPARTMENT OF JUSTICE
P.O. Box 94005
CIVIL DIVISION
TEL.: (22S) 342-7013
BATON ROUGE
FAX: (225) 342-2090

RICHARD P. IEYOUB
70804-9005
ATTORNEY GENERAl.

SEP 0 2 2003
OPINION NUMBER 0:3-0260

90-A.1 PUBLIC FUNDS
La. Const. Art. V, §26

Mr. Gaynell Williams
, Distdct Attorney is not prohibited from entering
Executive First Assistant
contract for creation of intemet site which sells
New Orleans Distdct Attorney’s Office
advertising.
619 South White Street
New Orleans, LA 70119

Dear Mr. Williams:

You requested the opinion of this office concerning the New Orleans District Attorney’s Office (the "D.A.’s Office") entering into a contract with an internet service provider (the "Company") to create a web page for the D.A.’s Office. You advised that the D.A.’s Office does not currently have an official web site. The proposal from the Company calls for the Company to design the web site and web page that will be owned exclusively by the Company. All pages and intellectual property associated with or related to the web pages will be owned by the Company. The Company will solicit advertising for placement on the front page of the web site, with the D.A.’s Office and the Company sharing the revenue from the advertising. Your questions are:

Does the D.A.’s Office have the power to enter into a contract with an internet service provider that will create a web page for the D.A.’s Office?

We have been unable to find any statute which specifically pertains to a contract between the District Attorney and an internet service provider to create a web page for the D.A.’s Office. However, if it is determined that a web page is necessary for the District Attorney to perform his constitutional duties as set forth in La.Const. Art. V, Sec. 26(B) which states that the District Attorney "shall have charge of every criminal prosecution by the state in his district, be the representative of the state before the grand jury in his district, and be the legal advisor to the grand jury", we believe that the ability to enter into a contract for the creation of a web page would be within the inherent authority of the District Attorney.

Does the D.A.’s Office have the power to sell advertising on its official web site?

Our research has not revealed any statute either authorizing or prohibiting the sale of advertising on the District Attorney’s official web site. Accordingly, as it is not prohibited

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Mr. Gaynell Williams
OPINION NUMBER 03-0260
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by law, we are of the opinion that the District Attorney may sell advertising on its official website.

3. Are criminal defense attorneys allowed to advertise on the web page?

La.Const. Art. V, Sec. 29(C) prohibits the district attorney from appearing, pleading, or in any way defending or assisting in defending any criminal prosecution or charge. It could possibly be argued that allowing a criminal defense attorney to advertise on the official web page of the District Attorney’s Office would constitute assisting in the defense of a criminal prosecution or charge and thus would not be allowed by the Louisiana Constitution.

In determining the types of advertisements which would not be permissible under Louisiana law, please note that La.Const. Art. XI, Sec. 4 prohibits public funds from being used to urge any elector to vote for or against any candidate or proposition and R.S. 43:111.1 prohibits the use of public funds for advertisements containing the names of public officials.

Ethically, the District Attorney may have to recuse his office from prosecuting any person or entity with whom he has a contract to sell advertising or from whom the District Attorney’s office derives advertising revenues.

We must also advise that if the District Attorney’s Office sells advertising on the web page, it is possible that a public forum may be created for purposes of the First Amendment to the United States Constitution. See discussions in United States v. American Library
Association, 2003 WL 21433656, S.Ct. (June 23, 2003); Cornelius v. NAACP
Legal Defense and Educational Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed. 2d 151 (2001); Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998); Diloreto v. Downey Unified School District Board of Education, 196 F.3d. 958 (Aug. 4, 1999).

If a public forum is created, it is possible that a court could determine that criminal defense attorneys, bail bond agents, fast food restaurants, adult bookstores, casinos and all other manner of legal enterprises should be allowed to advertise on the web page.

Are there any provisions of law that would require any revenues received by
=
the contract with an internet service provider to be paid to the City of New Orleans or any other city or state agency?

Our review of the statutes pertaining to the funding of the Distdct Attorney’s Office does not reveal any requirement that revenues received by the District Attorney pursuant to the contract with the intemet service provider be paid to the City of New Orleans or any other city or state agency. The statutes which pertain to funding of the District Attorney’s Office

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Mr. Gaynell Williams
OPINION NUMBER 03-0260
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address the disposition of fines, forfeitures and licensing fees (R.S. 15:571.11; R.S. 13:846; R.S. 13:1381.5), which would not include advertising revenues.

Trusting this adequately responds to your request, we remain

Yours very truly,

RICHARD P. IEYOUB
Attorney General

BY
S. HESS

/MSH