Bill Description: House Bill 230 would require organizers, hosts, and performers to prevent minors from being exposed to a show or performance that includes sexual conduct.

Rating: +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 230 would create Chapter 39, Title 6, Idaho Code, to address the issue of minor children being exposed to live sexual performances. While existing laws touch upon this topic, recent events have raised questions about their effectiveness. 

This new chapter would say, "Any person or institution that knowingly organizes, hosts, or performs in a show, exhibition, or performance by a live person before a live audience must take reasonable steps to restrict the access of minors if:

• The person or institution has reason to believe that minors are likely to be present;
• The show, exhibition, or performance involves live persons engaged in sexual conduct; and 
• The show, exhibition, or performance is patently offensive to an average person applying contemporary community standards in the adult community as a whole with respect to what is suitable for minors.

All three parts of this standard must be met to trigger the provisions of this statute. 

The section also provides a definition of sexual conduct:

• "Acts, whether actual or simulated, of masturbation, sexual intercourse, or physical contact with a person's unclothed genitals or pubic area."
• "Sexually explicit depictions of acts described" above.
• "Sexually provocative dances or gestures performed with accessories that exaggerate male or female primary or secondary sexual characteristics."

An action would need to meet only one of these definitions, not all three, in order to qualify as "sexual conduct" under the law.

Violations would not be directly criminalized but would create a "private cause of action" for "any minor who is exposed to sexual conduct as a result of a violation" of these prohibitions.

If a minor prevails in such an action, he may recover $5,000 in "statutory damages for each violation of this section." He may also recover "monetary damages from the defendant for all psychological, emotional, economic, and physical harm suffered" and "reasonable attorney's fees and costs."

The bill would also provide three affirmative defenses to an action brought pursuant to this law. 

• “The defendant is a host if such host is able to produce a legally enforceable contract signed by the event organizers, performers, or an authorized agent working on behalf of the event organizers or performers when such contract stipulates that performers at the event shall not engage in an exhibition, show, or performance that violates the requirements of subsection (1) of this section while using the facilities provided by the host”;
• “The parent or legal guardian of a minor fourteen (14) years of age or older accompanies such minor to a ticketed show, exhibition, or performance or has provided prior written consent for such minor to attend a ticketed show, exhibition, or performance in the company of a designated adult”; or
• “The defendant had reasonable cause to believe that the minor involved was eighteen (18) years of age or older, or such minor exhibited to the defendant a draft card, driver's license, birth certificate, or other official or apparently official document purporting to establish that the minor was eighteen (18) years of age or older.”

Taken together, these provisions of the bill seem to balance the rights of promoters and performers while still protecting the right of minor children not to be exposed to sexually offensive material.

(+1)

An additional subsection of House Bill 230 says, "It shall not be a defense to an action brought pursuant to this section that the minor was accompanied by the minor's parent or legal guardian," except as provided in the second bullet point above. This exception applies only to a minor age 14 or older and only to a "ticketed show, exhibition, or performance." 

It is reasonable to argue that minors should be protected from sexually explicit content and conduct, but the law should defer to parental rights. This bill would effectively prevent a parent or guardian of a minor under the age of 14 from providing affirmative consent to allow the minor to view certain performances or events. (It's also unclear why the exception is limited to a "ticketed" event.) 

(-1)

An additional provision of House Bill 230 says, "When either the attorney general or the county prosecuting attorney for the jurisdiction has reason to believe that any person or institution is violating, has violated, or is about to violate" the prohibitions found in this law, "the attorney general or such county prosecuting attorney shall have a cause of action for injunctive relief. The injunction shall be sufficient to prevent the defendant from violating the requirements of this section." 

This standard may be overbroad. Believing (but not knowing) that someone is about to violate a law (but hasn't yet) may be grounds for caution and observation, but it falls short of the standard that should be required for government action. While this section does not call for criminal prosecution, it does allow for injunctive relief, which means the government could shut down a performance before it happens because it suspects the performance might violate this law. 

(0)

Does it promote the breakdown of the traditional family or the deconstruction of societal norms? Examples include promoting or incentivizing degeneracy, violating parental rights, and compromising the innocence of children. Conversely, does it protect or uphold the structure, tenets, and traditional values of Western society?

House Bill 230 contains a lengthy section of "legislative findings" that cite numerous court decisions and attempt to lay out the constitutional framework for this law. These findings also touch on the societal issues and moral justifications that inspired the legislation. 

The exact boundaries of how much government can restrict freedom of expression will continue to be litigated, but this bill is tailored toward the legitimate purpose of protecting minors from being exposed to sexual content. 

(+1)