Summary
Alaska House Bill 127 would narrow the state’s “harmful to minors” law to apply only if the recipient is under 16 years old and the adult is reckless regarding the recipient’s age or the adult believes the recipient is less than 16 years old. The bill would also add a knowledge requirement as to the content being sent to the minor.
The bill amends the law challenged by Media Coalition in American Booksellers Foundation for Free Expression v. Sullivan. A preliminary injunction was granted on October 20, 2010 that barred enforcement of that law.
H.B. 127 is companion to S.B. 72.
Status
The provision amending the state’s “harmful to minors” law was removed from the bill before it was passed and signed by the Governor.
In June, U.S. District Judge Ralph Beistline struck down the state’s “harmful to minors” law and its application to the internet. (See American Booksellers Foundation for Free Expression v. Sullivan for more details.)
Analysis
This bill is an improvement to the existing state law, but it still violates the First Amendment. In addition to ABFFE v. Sullivan, there is a substantial body of case law striking down similar state and federal legislation that restricted “harmful to minors” content on the internet. Alaska can provide law enforcement with the means to protect minors without infringing on the First Amendment. The communication proscribed must be limited to specific instances in which the sender has actual knowledge that the person is a minor or believes to be a minor.
The reckless standard does not overcome the First Amendment case law. It is an inadequate knowledge requirement for criminalizing distribution of harmful to minors material, particularly on the internet. Unlike a brick and mortar store, there is no way to know whether a particular person receiving sexually frank material is a minor or an adult. So there is no reasonable way to restrict access to such material solely to adults.
As the Supreme Court found, anyone who makes material available on the internet through a website, listerv or chat room knows that there is a reasonable likelihood there are minors accessing their content. With hundreds or thousands of people accessing a website or chatroom, it is inevitable that a minor is among the visitors. To assume there are no minors accessing a site would be reckless regarding a minor’s presence. Thus, the effect of banning the dissemination on the internet of material “harmful to minors” is to force the provider of such material to deny access to both minors and adults, depriving adults of their First Amendment rights or to risk being prosecuted.
History
- On January 26, 2011, the bill was introduced [3] and referred to the House Committee on Judicary.
- On February 4, 2011, Media Coalition sent a letter [2] to Reps. Carl Gatto and Steve Thompson, chair and vice-chair of the committee. The letter explained that while the provision amending the state’s “harmful to minors” law is an improvement, it is still unconstitutional.
- On March 3, 2011, Media Coalition sent a second letter [1] to Reps. Gatto and Thompson, reiterating the constitutional issues with the bill.
- On March 14, 2011, the provision amending the state’s “harmful to minors” law was removed. H.B. 127 ultimately passed and was signed by Gov. Sean Parnell.
- In June, the U.S. District Court struck down the state’s “harmful to minors” law and its application to the internet. See American Booksellers Foundation for Free Expression v. Sullivan for more details on the lawsuit.