Bill Description: House Bill 139 would prohibit any school or public library from promoting or making available “material harmful to minors.” It would allow minors who obtained harmful materials in violation of the law, or their parents or legal guardians, to bring a civil lawsuit if school or library personnel distributed the materials or if the school or library “failed to take reasonable steps to restrict access to material harmful to minors.”
Analyst’s Note: A similar bill, House Bill 666, was introduced last year and earned a rating of 0 on the Idaho Freedom Index. Although it worked to protect parental rights and remove special perks granted to certain types of organizations, it imposed restrictions on the speech of private schools, colleges, and museums. Unlike House Bill 666, however, House Bill 139 does not impose restrictions on private museums. Consequently, the revised policy merits a slightly higher rating.
Does the bill create more transparency or accountability in public education institutions? (+) Conversely, does the bill reduce transparency and accountability in such institutions? (-)
House Bill 139 strengthens accountability by giving minors or their parent or guardian a private cause of action against a school, college, university, or public library if an “employee or agent of the institution gave or made available material harmful to minors; or … [t]he institution failed to take reasonable steps to restrict access to material harmful to minors.” The civil cause of action component gives parents a tool to hold schools and libraries accountable.
Does the bill protect freedom of speech in teaching or learning? (+) Conversely, does the bill restrict freedom of speech in teaching or learning? (-)
Analyst’s Note: House Bill 139 is consistent with First Amendment protections because the Constitution does not include a blanket free speech right to say or show anything to innocent minors. For example, individuals have a right to free expression yet they cannot show their genitals to minors. Similarly, individuals have a right to free speech, but they cannot distribute pornography to children.
Does the bill reinforce the idea of equal treatment under the law, merit, individual responsibility, personal agency, and expectations of academic excellence? (+) Conversely, does the bill allow for any type of discrimination against, or grant preferential treatment to, any individual or group for any purpose on the basis of race, sex, color, economic class, ethnicity, national origin, geographic area, legacy status, or other identity group? (-)
Idaho Code Section 18-1515 says that a person commits a crime if the person gives, sells, loans, promotes, or otherwise makes available to a minor “any picture, photograph, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors.” The prohibition also applies to “any book, pamphlet, magazine, printed matter however reproduced or sound recording … or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse” that, on the whole, would harm minors.
Under current law there is an exemption for disseminating “harmful material” to minors when it is done by a “school, college, university, museum or public library, or [if the person or entity disseminating the material] was acting in his capacity as an employee of such an organization or a retail outlet affiliated with and serving the educational purposes of such an organization."
Rather than removing this exemption, House Bill 139 adds a new section to the Code, prohibiting any school or public library from promoting, giving, or otherwise making available “material harmful to minors.” No educational institution or individual, whether working for a public or private entity, has the right to distribute harmful materials, such as pornographic books like “Gender Queer,” to children under the age of 18. Parents have a legal right to protect their children from receiving age-inappropriate or harmful materials, and children should not be exposed to dangerous exploitation by adults.
The protections afforded to minors from harmful materials are currently being applied unequally. Convenience stores like 7-Eleven and movie theaters are held to one standard, while government institutions like schools and public libraries are held to a different standard. By prohibiting schools and public libraries from distributing harmful materials to minors, House Bill 139 would help ensure that public and private entities are held to the same standard.
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