West Virginia Senate Bill 128 would bar the dissemination or display to minors of depictions or descriptions of nudity or sexual conduct that is “harmful to minors.” The bill would criminalize the dissemination or display of this content by brick and mortar retailers and theaters and by Internet. “Harmful to minors” is not defined.
A violation would be punishable by up to five years in prison, a fine of $25,000 or both.
The West Virginia legislature adjourned its 2015 session. It carries over bills to 2016, so S.B. 128 could be taken up next year.
» The bill does not define “harmful to minors.”
S.B. 128 uses the term “harmful to minors” but includes no definition for it. States may criminalize some sexual material for minors, but they must do so under the specific circumstances outlined in the three-pronged Miller/Ginsberg test, which criminalizes sexual material that, when taken as a whole:
- Predominantly appeals to the prurient, shameful or morbid interest of minors in sex;
- Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; AND
- Lacks serious literary, artistic, political or scientific value.
The bill uses the term “harmful to minors” generically, and neither it nor the West Virginia statute refers to the Miller/Ginsberg test.
» It could criminalize material generally accessible on the Internet.
Even if the definition of what material is illegal for minors incorporated the three-prong test in Miller/Ginsberg, it would be unconstitutional if the restriction was applied to general communication on the Internet. Courts have repeatedly struck down laws that criminalize speech generally accessible on the Internet, because they limit the speech of adults on the Internet to what is acceptable for minors, and they are not the least restrictive means to prevent minors from accessing this material.
- The bill was introduced  on January 14, 2015. It was referred to the Senate Committee on Judiciary.
- On January 20, 2015, Media Coalition submitted a legal memo  explaining the constitutional issues with the bill.
- The West Virginia legislature adjourned on March 18, 2014. It carries over bills to 2016, so the bill may be taken up again next year.