Hawaii Senate Bill 1234 would criminalize the dissemination of “harmful to minors” material to an adult, if the adult represented him or herself to be a minor. The state’s existing definition of “harmful to minors” is any material that is primarily devoted to narrative accounts of sexual activity or contains images of sexual activity or specific nudity, and:
- It is presented in a manner that the average person, applying contemporary community standards, would find that, taken as a whole, it appeals to a minor’s prurient interest; and
- Taken as a whole, it lacks serious literary, artistic, political or scientific value.
It is companion to H.B. 1007.
The bill was carried over to the 2012 session. There was no action taken on the bill in 2012. The bill is dead.
The definition of “harmful to minors” in the existing law is almost certainly unconstitutionally overbroad. Though minors do not enjoy the protection of the First Amendment to the same extent as adults, the U.S. Supreme Court has ruled that minors are entitled to significant First Amendment protection. Governments may bar public dissemination of protected material in relatively narrow and well-defined circumstances. This material is defined by a three-pronged test, known as the Miller/Ginsberg test, which states that in order for sexual material to be constitutionally unprotected as to a minor, it must, when taken as a whole:
- predominantly appeal to the prurient, shameful or morbid interest of minors in sex;
- be patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
- lack serious literary, artistic, political or scientific value.
The definition in the existing law lacks the second or “patently offensive” prong from the Miller/Ginsberg test. Courts have struck down similar laws that restrict material beyond the test.
To the extent that prosecutors apply the state’s “harmful to minors” law or S.B. 1234 to internet communication, it would still be unconstitutional even if the “harmful to minors” definition followed the Miller/Ginsberg test. Courts have struck down laws that apply “harmful to minors” restrictions to material generally available online, because by forcing websites to limit their material to what is acceptable for minors, they deprive adults of their First Amendment rights.
The only exceptions to these decisions have been laws that were limited to speech illegal for minors that were intended to be communicated to a person that the speaker has specific, rather than general, knowledge is a minor. States have also passed laws to outlaw such speech if it is tied to an otherwise illegal activity, such as luring or enticing a minor.
S.B. 1234 is also overbroad in that it would make it illegal for an adult to communicate to another adult material that is legal for adults, if the recipient claims to be a minor. It does not require that the sender of the material believe that the recipient is a minor. Even if the speaker knows the recipient is an adult, this legislation would make that speech a crime. This, in essence, creates a “heckler’s veto,” in that it would allow any adult to enter a chat room or visit a website devoted to sexual health or similar topic and claim to be a minor. Then, the site or other participants in the chat room would be forced to either risk prosecution or restrict the discussion to what is suitable for minors.
- On January 26, 2011, the bill was introduced  and referred to the Senate Committees on Public Safety, Government Operations and Military Affairs; on Economic Development and Technology; and on Judiciary and Labor.
- On February 9, 2011, Media Coalition submitted a memo to the committees , ahead of a scheduled hearing on the bill on February 10, 2011.
- The committees amended  the bill so that it will go into effect July 1, 2050, instead of upon approval. Both committees recommended the bill be passed as amended.
- The bill was referred to the Senate Committee on Judiciary and Labor. The legislature adjourned before the committee had the opportunity to consider the bill, but the bill is carried over to the 2012 session.
- There was no action taken on the bill during the 2012 session. The bill is dead.