Bill Description: House Bill 495 would criminalize advertising any product or service that is illegal under Idaho law.
Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for nonviolent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?
House Bill 495 would create Chapter 89, Title 18, Idaho Code, titled "Advertising Illegal Products and Services Prohibited." This new chapter would contain one section reading, "Except as provided in section 18-603, Idaho Code, any person who willfully publishes any notice or advertisement, in any medium, of a product or service that is illegal under Idaho law is guilty of a misdemeanor."
On its surface, this may appear reasonable, yet many products and services are legal in some states and not others, and this bill does not differentiate between where the "notice or advertisement" is published or who its intended audience may be. It does not even specifically require that the offending advertisement be published in Idaho or target Idahoans. Given that the majority of advertising is now done online, this creates an expansive definition of “publishing” that could include simple social media posts.
Las Vegas casinos provide access to slot machines and other forms of gaming that are not legal in Idaho. Would an Idaho travel agent who advertises a Las Vegas vacation package act illegally if this bill became law? Would an Idaho-based advertising company that buys online ads for clients such as a Las Vegas casino or a Portland dispensary become a law-breaker? Would it even matter if the ads were targeting customers in the states where these services are legal?
This bill is poorly defined and could easily ensnare businesses and individuals who are engaged in legitimate advertising for clients who provide legal goods and services to their customers.
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?
Even beyond the criminalization issues, House Bill 495 raises very serious First Amendment concerns because publishing a "notice or advertisement" (which could be as simple as a tweet or Facebook post) clearly falls under constitutionally protected free speech.
This bill is not narrowly tailored to prohibit soliciting an Idahoan to violate the law. Instead, it would broadly criminalize providing information about goods and services that are available outside of Idaho.
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