Bill Description: House Bill 625 would criminalize sending "unsolicited sexual material" to another adult.
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 625 would create Section 18-4117, Idaho Code, to criminalize sending "unsolicited sexual material" to another adult.
The bill would make it a crime for one adult to distribute to another "any unsolicited sexual material with the intent to annoy, terrify, threaten, intimidate, harass, or offend or to arouse, appeal to, or gratify the lust, passions, or sexual desires of the sender, recipient, or third party" without the recipient's consent.
Such an act would be "a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000) or by imprisonment in the county jail for not more than one (1) year, or by both such fine and imprisonment."
The bill defines "unsolicited sexual material" very broadly, including "any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body that depicts nudity, sexual conduct, or sadomasochistic abuse."
The person who reads this definition might be tempted to imagine the stereotypical "dick pic" as the subject of this bil. But it should be noted that some of the animated GIF reactions built into popular messaging apps would fall under this definition, including clips from popular movies and TV shows, as well as drawings (including cartoons) featuring sexual conduct.
This bill criminalizes sending a wide range of messages based both on their content and their intent. Some of these messages might approach threats or harassment, where legitimate criminal intent could exist. Most of the messages that would fall within this bill's scope, however, are far more casual and innocent.
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 625 violates the constitutional protections of the First Amendment, both freedom of speech and freedom of the press. The right to send words that might be perceived as annoying includes the right to send images that might be perceived in the same way.
The definitions used in this statute are broad enough to potentially prevent even relevant news featuring a photo or video of a public official in a compromising position from being sent to an email list.
Of course, an unwilling recipient of an electronic message is free to block messages from an unwelcome sender, which is similar to the freedom to walk away from unwelcome speech.