Summary
Mississippi Senate Bill 2360 would criminalize the knowing and intentional dissemination of descriptions or depictions of simulated or actual sexually explicit nudity or conduct by means of the internet, listservs and public chatrooms to a person known or believed to be a minor.
Status
The Senate amended the bill to replace “sexually explicit” material with “obscene” material, as defined by the Miller test. The Senate passed the bill. The bill died in the House Committee on Judiciary.
Analysis
The bill’s definition of what material is 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 adults, the U.S. Supreme Court has ruled that government may bar public dissemination of protected material under relatively narrow and well-defined circumstances. To determine what material may be proscribed for minors, the Court created a three-part test in Ginsberg v. New York and modified by Miller v. California. In order for sexual material to be constitutionally unprotected as to a minor, it must, when taken as 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 legislation does not include any part of this test.
Even if the bill used the Miller/Ginsberg test, it would be unconstitutional if the restriction was applied to general communication on the internet, listservs, social networking websites or in public chatrooms. A substantial body of case law struck down laws that applied “harmful to minors” restrictions on the internet. Courts have found that such laws violate the First Amendment because they restrict the speech of adults on the internet and limit it to only what is appropriate for minors.
The only exceptions to these decisions have been laws that were limited to speech that meets the Miller/Ginsberg test and was intended to be communicated to a specific person who the speaker has actual, rather than general, knowledge is a minor or believes to be a minor.
History
- On February 13, 2012, the bill was introduced [2] and referred to the Senate Committee on Judiciary.
- The committee recommended the bill be passed on March 6, 2012.
- On March 13, 2012, Media Coalition sent a memo in opposition [1] to the members of the Senate, explaining the constitutional issues with the bill.
- The Senate amended [3] the bill on March 15, 2012. The amendments replaced “sexually oriented material” with “obscene material,” as defined by the Miller test.
- The Senate passed the bill as amended and sent it to the House. The bill was referred to the House Committee on Judiciary.
- The bill died in the House Committee on Judiciary.