Bill Description: House Bill 666 would prohibit schools, colleges, universities, museums, and public libraries from disseminating potentially offensive material to minors.
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 666 deals with the intersection of two important rights, freedom of speech and parental rights. At issue are materials deemed "harmful to minors" by Idaho code, particularly Chapter 15, Title 18. To say that elements of this statute are poorly written is an understatement. It provides no objective standard of what materials are deemed "harmful to minors" or of "obscene," for that matter.
Some terms, such as "prurient interest" are not defined in statute at all. The definitions that do exist are highly subjective and include phrases such as "patently offensive to prevailing standards in the adult community with respect to what is suitable material for minors" and "as judged by the average person, applying contemporary community standards."
One description used for "harmful to minors" is an object or experience that "has the dominant effect of substantially arousing sexual desires." As any psychologist can tell you, there really are no limits on what could fall within that standard.
The "materials" whose dissemination is prohibited can include "anything tangible ... whether derived through the medium of reading, observation or sound." This definition is broad enough to include popular novels, magazines, R-rated movies, and TV shows available on popular streaming platforms.
It is within this subjective and ill-defined arena that we examine House Bill 666, which would amend Section 18-1517, Idaho Code, the section that provides affirmative defenses against the criminal charge of "disseminating material harmful to minors."
At present, there are four such defenses. The first is that the minor convincingly misrepresented his or her age. The second is that the minor's parent or legal guardian was present and consented in writing. The third is that person who disseminated the material was the minor's parent or legal guardian. The fourth is that the accused was "a bona fide school, college, university, museum or public library, or 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."
House Bill 666 would strike this fourth defense in its entirety.
The entities listed here are often public, but (other than public libraries), there are also private versions. It is appropriate and normal for the Legislature to set policies about how tax dollars are spent, and that includes limits on what materials public entities should purchase and make available to residents. It happens all the time in government, particularly in education, where elected boards and bureaucracies make such decisions about what materials to buy, use, or make available to people young and old.
It is reasonable to expect that a Legislature might also determine, as a matter of public policy, how various policies, purchases, and content affect parental rights and to adopt policies to protect those rights.
That is what this bill does. Under this legislation, entities such as public schools are prevented from providing these materials to children without their parent’s or guardian's explicit permission.
Importantly, this bill protects parental rights by removing a special perk granted to certain types of organizations, mainly within government, which are currently protected from the same legal consequences that would apply to other organizations.
There is, however, one unavoidable concern with the bill. As stated before, the restrictions imposed by this bill are not limited to government entities. They affect private schools, colleges, universities, and museums as well.
House Bill 666 (and several other sections of Chapter 15, Title 18) holds that government-enforced censorship should be society's default standard rather than placing the duty on parents and guardians who wish to censor the materials a minor in their care may access.
The legislation accepts the notion that government has the authority to censor speech, when that is not what either the U.S. Constitution or the Idaho Constitution permit. We understand that the U.S. Supreme Court has created legal precedent to say that the government has that authority, but the plain reading of the Constitution says otherwise.
If we were to accept that the state and federal constitutions do give government the power to censor speech deemed obscene, it necessarily would mean the government also could have wide latitude to censor or ban other forms of speech. Such censorship would likely be argued as being in the interest of public safety, as it is happening here, or to prevent the proliferation of a “false narrative” deemed harmful to the government’s chosen course of action, as has been argued more so of late.
In Miller v. California, one of the more significant obscenity cases taken up by the U.S. Supreme Court, a 5-4 verdict upheld a subjective definition of obscenity that has allowed laws such the one in Idaho to proliferate.
In his dissent, Justice William O. Douglas wrote, "What shocks me may be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. ... We deal with highly emotional, not rational, questions. To many the Song of Solomon is obscene.
“I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be defined, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply. Perhaps the people will decide that the path towards a mature, integrated society requires that all ideas competing for acceptance must have no censor. Perhaps they will decide otherwise."
House Bill 666 would force private schools, colleges, universities, museums, and libraries to comply with the government’s limitations of speech, contrary to the wording of both state and federal constitutions.