Indiana Senate Bill 14


Summary

Indiana Senate Bill 14 would amend the state’s existing law criminalizing the possession or dissemination of any material that contains depictions of minors engaged in sexual conduct. The bill creates two new sections and reorders the lettering of the existing sections:

  • An existing section in the law criminalizes the dissemination of material that describes sexual conduct of minors.
  • A new section increases the penalties for the existing law if certain element are met.
  • An existing section in the law makes illegal depictions of adults who appear to be minors that lack serious value and drawings of minors that are, by definition, not photographic images.
  • A new section criminalizes depictions of adults who appear to be minors, regardless of whether the depiction has serious value.

Status

The Senate passed the bill.

Analysis

As we noted last year in our opposition to Senate Bill 313, Indiana’s existing law is unconstitutionally overbroad because it criminalizes:

  • descriptions of minors, which are understood to mean written communications, rather than images,
  • images of adults who appear to be minors,
  • drawings, computer-generated images or other non-photographic images of minors.

When the Supreme Court deemed that sexually explicit images of minors are not protected by the First Amendment in New York v. Ferber, it also specifically noted that only visual depictions — not written descriptions — of minors are outside First Amendment protection. It also made clear that drawings that “do not involve live performance or photographic or other visual reproduction of live performances” retain First Amendment protection.

Two decades later, in Aschroft v. Free Speech Coalition, the Court considered the constitutionality of the Child Pornography Prevention Act. The CPPA criminalized depictions of adults who appear to be minors and computer-generated images that appear to be of a minor. In the decision striking down CPPA, Justice Anthony Kennedy explained that these images are distinct from images of actual minors, because it “records no crime and creates no victims by its production.” Justice Kennedy wrote, “Protected speech does not become unprotected merely because it resembles the latter.” He also noted that the Ferber Court considered the images prohibited under CPPA as an “alternative and permissive means of expression” in lieu of images of minors.

History

  • The bill was introduced [2] on January 5, 2016 and referred to the Senate Committee on Corrections and Criminal Law.
  • On January 6, 2016, the committee recommended the bill be passed.
  • On January 19, 2016, Media Coalition submitted a legal memo [1] to the Senate, explaining the constitutional issues with the bill.
  • On February 1, 2016, the Senate passed the bill.

Last updated: Jul 27, 2016