Summary
Rhode Island Senate Bill 2647 would criminalize the knowing and intentional dissemination of graphic images of the genitals or pubic area or of actual sexual activity by means of the internet, listservs and public chatrooms to a person known or believed to be a minor.
It would also prohibit intentionally contacting a person or causing a person to be contacted in a manner that annoys or bothers that person, that serves no legitimate purpose and that would cause a reasonable person to suffer substantial emotional distress.
Another section would criminalize the dissemination of a nude or sexually explicit image without the subject’s approval even if it was taken with his or her permission.
Status
The Senate Committee on Judiciary recommended the bill be held for further study.
Analysis
Harmful to minors provision: The definition of what images are illegal to disseminate to a minor is unconstitutionally overbroad. Though minors do not enjoy the protection of the First Amendment to the same extent as adult, the Supreme Court has ruled that only in relatively narrow and well-defined circumstances may the government bar public dissemination of protected material to them. That material is defined by the three-prong Miller/Ginsberg test. The definition in the bill used to determine what images are illegal for minors lacks any of the prongs from this test.
And even if the section applied only to sexual images that met the three-prong test, it would be unconstitutional if the restriction was applied to general communication on the internet, listservs and in public chatrooms. Several courts have struck down laws that applied “harmful to minors” restrictions to the internet, finding that they deprive adults of their First Amendment rights to access that material. The only exceptions to these decisions have been laws that were limited to speech that meets the Miller/Ginsberg test and that was intended to be communicated to a specific person that the speaker has actual, rather than general, knowledge is a minor or believes to be a minor.
Annoying or offensive speech provision: This provision is overly vague and may impact constitutionally protected speech. Speech that annoys or bothers the listener is not necessarily outside First Amendment protection, even if it causes emotional distress. Under this provision, a newspaper could be at risk of prosecution if readers contacted the subject of an unfavorable article and caused that person emotional distress.
Nonconsensual distribution of images provision: This provision may limit the distribution of images protected by the First Amendment. This could allow the subject of an unflattering or controversial image to have veto power over its dissemination, even if it were taken with his or her explicit permission.
History
- On March 1, 2012, the bill was introduced [2] and referred to the Senate Committee on Judiciary.
- On April 30, 2012, Media Coalition submitted a memo in opposition [1] to the members of the committee, explaining the constitutional issues with the bill.
- The committee held a hearing on the bill on May 1, 2012. After the hearing, the committee voted to hold the bill for further study.