Bill Description: House Bill 271 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 271 is similar to House Bill 613, introduced in the 2024 legislative 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 271 would create Chapter 90, Title 18, Idaho Code, titled "Advertising Illegal Products and Services Prohibited." This new chapter would criminalize "any commercial 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."
A violation would be a misdemeanor with a fixed fine of $500 per day for as long as the violation exists.
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 271 proposes to embrace such unconstitutional mandates as a pretext for criminalizing free speech.
(-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?
The prohibition contained in House Bill 271 raises First Amendment concerns, with its broad definition of "commercial advertisement" as "an advertisement that encourages consumers to engage with products or services to benefit a commercial enterprise." This definition goes well beyond billboards and could include a social media post or even an email sent to newsletter subscribers about a product or service that is legal under another state's laws.
Laws that limit free speech require strict scrutiny, which means they must further a "compelling governmental interest," and must be narrowly tailored to achieve that interest.
(-1)
