Bill Description: House Bill 384 would require schools and public libraries to take steps to restrict children's access to obscene materials.
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 384 would create Section 18-1517B, Idaho Code, called the "Children's School and Library Protection Act." This section would say that "a school or public library, or an agent thereof, shall not promote, give, or make available" any material defined as "harmful to minors" to a minor.
If enforced, this prohibition would serve to protect the right of minor children not to be exposed to sexually obscene material in government facilities like schools and libraries.
House Bill 384 protects parental rights by creating "an affirmative defense to civil liability under this section" for a school or public library that "verified the minor involved was accompanied, at the time of the act, by his parent or legal guardian, or by another adult and the adult represented that he was the minor's parent or legal guardian and signed a written statement to that effect."
In other words, if some parents want to allow their children to access sexually obscene materials (a questionable but legal decision), they can sign a document to allow it. Despite the circulation of claims to the contrary, this bill will not limit the right or ability of parents to expose their children to whatever materials the parents choose.
Does it violate the principle of equal protection under the law? Examples include laws which discriminate or differentiate based on age, gender, or religion, or which apply laws, regulations, rules, or penalties differently based on such characteristics. Conversely, does it restore or protect the principle of equal protection under the law?
Under Idaho law, a private entity could be charged criminally for providing sexually obscene material to a child, but House Bill 384 doesn't apply this same standard to government entities.
Instead, enforcement would be limited to injunctive relief, which a county prosecuting attorney or the attorney general could seek against a school or library. Essentially, this means a court would tell the defendant to stop violating the law.
The only other option created by his bill would be for a parent or legal guardian whose child obtained obscene material from a school or public library to pursue a private cause of action (that is, file a lawsuit). This would be allowed only if the parent or legal guardian first provided the institution written notice asking it to relocate the obscene material and the institution refused for at least 30 days to do so. Even in such cases, the minor, parent, or legal guardian who prevails in an action would only be allowed to recover $250 in "statutory damages" plus "actual damages and any other relief available by law."
It is appropriate that parents have recourse against offending institutions. But it is troubling that the cap on statutory damages is so low and that parents have to first request the institutions to actually follow the law.
It is particularly problematic that a private bookstore would face criminal sanctions for providing children with sexually obscene materials, but government facilities like schools and libraries would face a mere slap on the wrist for the exact same offense.
Any enforcement mechanism is better than what we have now, but what is proposed by House Bill 384 is quite inadequate.
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