Summary
Delaware Senate Bill 68 would bar websites directed to minors from marketing or advertising a range of products and services that are illegal for minors. Also, any website that has actual knowledge that a minor is on the site is barred from advertising or marketing those goods and services to that minor. Among the goods and services that may not be advertised or marketed is material that “predominately appeals to the prurient, shameful, or morbid interest of minors; is patently offensive to the prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and, taken as a whole, lacks serious literary, artistic, political, social or scientific value for minors.”
This language mirrors the three prongs of the Miller/Ginsberg test for material that is harmful to minors but fails to limit it to material with sexual content.
Status
The bill was signed into law by Gov. Markell. It goes into effect January 1, 2016.
Analysis
The Supreme Court has emphasized that the Miller/Ginsberg test, which defines what content may be proscribed for minors, only applies to sexual content. In Brown v. Entertainment Merchants Association, the Court struck down a California law that inserted violence into the test in place of sexual content. The Court has also held that absent this limitation to sexual material, speech cannot be criminalized because it is deemed to lack serious value.
Restrictions on commercial speech must satisfy the “intermediate scrutiny” test, and it is unlikely that this restriction would satisfy that test. In addition, the Court has acknowledged that advertisements for material protected by the First Amendment are treated differently than advertisements for general goods or services.
Even if the bill is amended so that it only applies to marketing and advertising to minors of sexual speech that is illegal for minors, it may still violate the First Amendment because it will have a substantial chilling effect on websites. It forces online booksellers and home video providers to pejoratively identify material as illegal for minors. Speech is presumed legal for adults and minors until it is found to be illegal by a court. But booksellers and video providers will err on the side of caution rather than risk prosecution under the law, thereby impeding minors from accessing some speech that they have a right to see or hear.
History
- The bill was introduced [3] on April 23, 2015. It was referred to the Senate Committee on Judiciary. As introduced, it would have barred the online marketing or advertising of “sexually oriented material” to minors or on websites directed to minors.
- On June 9, 2015, the language of the bill was substituted [4]. The substitute bill replaces “sexually oriented material” with the three prongs of the Miller/Ginsberg test, but nothing in the bill limits it to sexual content. The Senate Committee on Judiciary recommended the bill be passed as substituted.
- The substituted bill passed the Senate on June 18, 2015. The bill was sent to the House and referred to the House Committee on Administration.
- On June 24, 2015, the House Committee on Administration recommended the bill be passed.
- Media Coalition submitted a legal memo [1] to the House and a letter [2] to Delaware Attorney General Matt Denn on June 25, 2015. Both explain the constitutional issues with the bill.
- The House of Representatives passed the bill on June 25, 2015.
- On August 7, 2015, Gov. Jack Markell signed the bill into law. It goes into effect January 1, 2016.