Bill Description: House Bill 710 would require schools and public libraries to take small steps to restrict children's access to some obscene materials.
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NOTE: House Bill 710 is related to House Bill 384, introduced earlier this session.
NOTE: The Senate Amendment to House Bill 710 has made this already weak bill even weaker, doubling the time, from 30 days to 60 days, that libraries are provided cover while they continue to peddle smut to children.
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 710 would amend Section 18-1514, Idaho Code, which defines "obscene materials" that are deemed "harmful to minors" in Idaho code. Idaho code provides an exception for materials that possess "serious literary, artistic, political or scientific value for minors according to prevailing standards in the adult community, with respect to what is suitable for minors."
House Bill 710 would strike "according to prevailing standards in the adult community, with respect to what is suitable for minors," leaving this exception open-ended and removing clarity surrounding who should determine what constitutes "serious literary, artistic, political or scientific value for minors."
Additionally, House Bill 710 would fully remove Section 18-1514(6)(b), Idaho Code, which says that material is "harmful to minors" if "the quality of any material or of any performance, or of any description or representation, in whatever form, which, as a whole, has the dominant effect of substantially arousing sexual desires in persons under the age of eighteen (18) years."
This change means that material fitting this description would no longer be deemed "harmful to minors" and could be legally disseminated to children.
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House Bill 710 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 “harmful to minors” were properly defined and the bill called for robust enforcement of this prohibition, the bill would help protect minor children from being exposed to sexually obscene material in government facilities like schools and libraries.
Unfortunately, due to the narrowed definition of "harmful to minors" discussed above and the meager enforcement mechanisms addressed below, this bill fails in its stated objective of protecting children.
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House Bill 710 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 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.
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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 710 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 after two steps: the parent or legal guardian provides the institution with written notice, asking it to relocate the obscene material, and the institution refuses for at least 30 days 60 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 follow the law.
It is also rather illogical to ask parents or guardians of schoolchildren to request the "relocation" of materials that are legally defined as "harmful to minors" in a K-12 school library. Such libraries only serve minors and thus should have no "adult" section to which obscene materials could be relocated.
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 same offense.
This meager enforcement mechanism may be somewhat better than what we have now, but what is proposed by House Bill 710 is quite inadequate.
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