Summary
Florida House Bill 855 and Senate Bill 1454 would make several changes to the definition of harmful to minors and to the definition of child pornography.
The legislation would delete the serious value prong of the harmful to minors definition and replace it with a second description of the type of content that would be subject to the law. It would delete the “taken as a whole” element of the definition. It would also amend the definition of the crime of distribution of material harmful to minors to allow the law to apply to any sexual material without requiring that it fit the definition of harmful to minors.
The legislation would also amend the definition of child pornography to include text that depicts a minor engaging in sexual conduct. The present law is limited to images that depict a minor engaging in sexual conduct.
Status
Both bills were withdrawn from consideration and died in the respective Education Committees.
Action
On March 5, 2019, Media Coalition submitted a memo in opposition to the House and Senate committees that are considering the bill.
Analysis
The bill applies to material that goes beyond the sexual speech that the Supreme Court has said may be restricted for minors, as defined by the three-prong Miller/Ginsberg test. Ginsberg v. New York (1968) and Miller v. California (1973)
The Supreme Court has rejected attempts to restrict minors’ access to sexual speech that was broader than what is allowed under the Miller/Ginsberg test. Reno v. ACLU (1997); Sable Communications v. FCC (1989)
The Supreme Court has directly addressed the importance of the “serious value” prong in the formulation of the Miller/Ginsberg test. It is meant to be a safe harbor for important speech, even if it satisfies the first two prongs of the obscenity test. Pope v. Illinois (1987)
The bill is also unconstitutional because it adds “text” to the definition of child pornography. The Supreme Court has held that non-obscene descriptions of sexual conduct by minors is fully protected by the First Amendment and cannot be made illegal by shoehorning them into a definition of child pornography. New York v. Ferber (1982)
History
On February 15, 2019, H.B. 855 was filed.
On February 27, 2019, S.B. 1454 was filed.
On February 28, 2019, H.B. 855 was referred to the Education Committee, in the PreK-12 Quality Subcommittee and PreK-12 Appropriations Subcommittee.
On March 4, 2019, S.B. 1454 was referred to the committees on Education; Criminal Justice; Judiciary; and Appropriations.
On March 5, 2019, Media Coalition submitted a memo in opposition to the House and Senate committees.
On March 26, 2019, H.B. 855 was reported out of the subcommittee favorably and referred to the Education Committee.
On May 3, 2019, both the House Education Committee and the Senate Education Committee withdrew the bills from consideration.