Summary
Alaska House Bill 298 would expand the state’s existing law barring the distribution of “indecent material” to minors to apply to any type of distribution, rather than merely by computer. “Indecent material” is defined to include any depiction of actual or simulated sexual penetration; lewd touching or exhibition of the genitals, anus or female breast; masturbation; sexual masochism or sadism.
The bill was amended to bar the distribution of “harmful to minors” material, with a definition for “harmful to minors” that follows the Miller/Ginsberg test. However, the bill would apply to material generally available on the internet. The bill would also make it illegal to disseminate sexually explicit content that depicts adults who appear to be minors or computer generated images that appear to be minors.
It is companion to Senate Bill 222.
Status
Its companion bill, S.B. 222, was signed into law.
In 2011, the U.S. District Court struck down the law and the state’s existing harmful to minors law as violating the First Amendment, in the Media Coalition case American Booksellers Foundation for Free Expression v. Sullivan.
Analysis
As introduced: Alaska’s existing “harmful to minors” law is almost certainly 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 they are entitled to significant protection. Governments may restrict minors’ access to some sexually explicit speech but it is a narrow range of material determined by a three-prong test called the Miller/Ginsberg test. The existing law and this bill restrict material beyond that test.
The existing law’s application to the internet is also likely unconstitutional. It would still be unconstitutional even if it followed the Miller/Ginsberg test. Courts have held that “harmful to minors” restrictions effectively forces websites to bar access for both adults and minors, since there is no way of knowing who is accessing the material. As a result, it deprives adults of their First Amendment right to access material legal for them. The only exceptions to these decisions have been laws that were limited to speech illegal for minors under the Miller/Ginsberg test and were intended to be communicated to a person that the speaker has specific, rather than general, knowledge is a minor or believes to be a minor.
As amended: Limiting the material subject to prosecution to speech that falls under the Miller/Ginsberg test is a significant improvement, but the bill still applies the restriction to material generally available on the internet. As noted above, this is likely unconstitutional, as it deprives adults of their First Amendment rights to access that material.
As for the provision regarding sexual content depicting minors, it would criminalize material that is fully protected by the First Amendment and does not exploit minors. The U.S. Supreme Court struck down a similar federal law, finding that though a state may ban sexually explicit images of actual children, it cannot ban images that only appear to be of a minor, whether it is an adult portraying a minor or computer-generated images of a minor. These images can be banned only if found to be obscene under the three-prong Miller test for obscenity, which defines such material as descriptions or representations of lascivious nudity or sexual conduct that:
- an average person, applying contemporary community standards, would find the work, when taken as a whole, appeals to the prurient interest in sex;
- the work depicts or describes such nudity or conduct in a patently offensive manner; and
- the material, considered as a whole, lacks serious literary, artistic, political or scientific value.
The bill’s definition of “appears to be a child” only includes two of these three prongs, omitting the second prong.
History
- On January 19, 2010, the bill was introduced [3] and referred to the House Committees on Judiciary and on Finance.
- Media Coalition submitted a memo to the members of both committees [2], explaining the constitutional issues with the bill and the existing state law.
- The bill was amended in the House Committee on Judiciary [4] on February 12, 2010.
- Media Coalition submitted a second memo to the members of both committees [1], explaining that the bill as amended still has constitutional issues.
- Gov. Sean Parnell signed its companion bill, S.B. 222, into law on May 14, 2010.
Subsequent litigation
Media Coalition filed a legal challenge to S.B. 222 on July 31, 2010. The case is American Booksellers Foundation for Free Expression v. Sullivan.
In 2011, the U.S. District Court struck down both the state’s “harmful to minors” law and its application to the internet.