Summary
Florida Senate Bill 1618 would expand the definition of child pornography to include any visual depiction that has been “created, adapted or modified to appear that a minor is engaging in sexual conduct.”
The existing law only criminalizes images of actual minors engaged in sexual conduct.
Status
The Florida legislature adjourned its 2012 session. The bill is dead.
Analysis
This bill is constitutionally suspect to the extent the legislation would apply to images of adults who appear to be minors or to images that appear to be minors but were created without the involvement of an actual minor, be they drawn, sculpted, created on a computer or otherwise. In 2002, the Supreme Court found the Child Pornography Prevention Act (CPPA) unconstitutionally overbroad. The CPPA criminalized both depictions of adults who appear to be minors and computer-generated images that appear to be of a minor engaging in real or simulated sex or with genitals lasciviously displayed. The Court ruled that unless the material included actual minors engaged in prohibited sexual activity, the material is protected by the First Amendment and could only be banned if it is first found to be obscene under the three-prong Miller test.
This legislation could criminalize significant mainstream material including many art books that contain paintings, drawings or sketches that have a sexual theme, and popular movies such as Traffic, The Reader and American Beauty that depict minors but do not involve an actual child. Since none of this material includes images of actual minors, it cannot be made illegal unless it is found to be obscene under the test in Miller.
History
- On January 6, 2012, the bill was introduced [2] and referred to the Senate Committees on Criminal Justice, on Judiciary and on Budget.
- Media Coalition submitted a memo in opposition [1] to the members of the committees on January 13, 2012. The memo explained the constitutional issues with the bill.
- The Florida legislature adjourned its 2012 session. The bill is dead.