Summary
Kansas House Bill 2185 would change the scienter requirement in Kansas’ law that bars the display to minors of material harmful to minors. Present law makes it a crime to knowingly display such material to a minor. H.B. 2165 would lessen the standard to recklessly displaying such material to a minor.
Status
The Kansas legislature adjourned its 2013 session. The bill is dead.
Analysis
Lowering the knowledge requirement in the state’s “harmful to minors law will have a chilling effect on retailers and will inevitably lead to self-censorship. Although the courts have ruled that some limitation on the display of material “harmful to minors” is permissible, they have also ruled that these limitations may not unreasonably hinder the access of adults.
In Smith v. California, the Supreme Court ruled that laws restricting access to speech must include a knowledge requirement. A bookseller could not be prosecuted if he or she had no knowledge of the contents of a book or magazine. Though the Court did not mandate a specific knowledge standard, it has referred to “knowingly” as an appropriate standard in numerous subsequent cases. Knowingly was adopted as the standard for knowledge in the model laws for barring the sale or display of materials that are obscene or harmful to minors and is the standard used in virtually every state that has such laws.
Even though they may not be a substantial difference between knowingly and recklessly, lessening of the knowledge requirement could make it easier to pursue prosecutions against book and video store owners and other retailers. This will cause an inevitable chilling effect that will lead to self-censorship by retailers.
History
- On January 30, 2013, was introduced [2] and referred to the House Committee on Corrections and Juvenile Justice.
- Media Coalition sent a legal memo [1] to the members of the committee on February 11, 2013, ahead of a hearing on the bill. The memo explains the constitutional issues with the bill.
- The committee took no action on the bill during the hearing on February 12, 2013.
- The Kansas legislature adjourned its 2013 session. The bill is dead.
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