Bill Description: House Bill 613 would criminalize the act of advertising a product or service that is illegal — under federal, state, or local law — where the product or service is offered.
Rating: -2
NOTE: House Bill 613 is related to House Bill 495, introduced earlier this session.
Does it violate the principles of federalism by increasing federal authority, yielding to federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules? Examples include citing federal code without noting as it is written on a certain date, using state resources to enforce federal law, and refusing to support and uphold the Tenth Amendment. Conversely, does it restore or uphold the principles of federalism?
House Bill 613 would create Chapter 89, Title 18, Idaho Code, titled "Advertising Illegal Products and Services Prohibited." This new chapter would contain one section reading, "Any person who willfully publishes any notice or advertisement, in any medium, within the state of Idaho for a product or service that is illegal under the laws of the jurisdiction where the product or service is offered, including federal, state, or local laws, is guilty of a misdemeanor."
Although this code references "federal, state, or local laws," the statement of purpose for House Bill 613 zeros in on federal law, saying, "This legislation will prohibit advertising of products and services in Idaho which are federally illegal."
The primary target of this bill seems to be marijuana, which is broadly legal under state law in four of Idaho's six neighboring states and legal for medical use under state law in another. Despite these state laws, however, there are still (largely unenforced) federal laws that make marijuana illegal.
On most issues where the federal government engages in unconstitutional overreach, Idaho is among the first to vocally assert its state sovereignty. That makes this legislation anomalous.
In 2009, Idaho adopted House Joint Memorial 4, which said in part:
"NOW, THEREFORE, BE IT RESOLVED by the members of the First Regular Session of the Sixtieth Idaho Legislature, the House of Representatives and the Senate concurring therein, that the state of Idaho hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.
"BE IT FURTHER RESOLVED that this serves as notice and demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.
"BE IT FURTHER RESOLVED that all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions, or requires states to pass legislation or lose federal funding, be prohibited."
The state of Idaho is on record opposing federal mandates that are "beyond the scope of … constitutionally delegated powers," yet House Bill 613 proposes to embrace such unconstitutional mandates as a pretext for criminalizing free speech. It is troubling that this applies to a product that other states have exercised their sovereignty to legalize.
(-1)
Does it violate the spirit or the letter of either the U.S. Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the U.S. Constitution or the Idaho Constitution?
House Bill 613 also raises First Amendment concerns because publishing a "notice or advertisement" (which could be as simple as a tweet or Facebook post) about a product or service that is legal under another state's laws falls under constitutionally protected free speech.
Any law criminalizing speech requires strict scrutiny, which means it must further a "compelling governmental interest," and must be narrowly tailored to achieve that interest.
(-1)
