Summary
Maine Legislative Document 1114 would make it a crime for an adult to “electronically transmit” an image or video of “sexually explicit conduct” or a link to a site that hosts such an image to a person he or she knows or believes to be less than 14 years old. “Electronically transmit” is defined as including, but not limited to, electronic mail or text messaging or through social media or a “community online forum.” “Sexually explicit conduct” is not defined.
Status
The Maine legislature has adjourned its 2015 session. The bill is carried over to 2016.
Analysis
Governments can restrict minors’ access to some sexually explicit speech, but that speech is a narrow range of material determined by the three-prong Miller/Ginsberg test. This bill’s use of “sexually explicit conduct” lacks any part of that test.
Even if this bill included all three prongs of the test, it would still be unconstitutional because it applies to material generally available on the Internet. Courts have struck down laws that apply “harmful to minors” restrictions to the Internet, because they restrict the First Amendment rights of adults.
Courts also struck down similar laws as violating the Commerce Clause, which reserves to Congress the power to regular interstate commerce. The bill is not limited to a person located in Maine communicating with a minor located in Maine. Furthermore, websites cannot prevent themselves from being “transmitted” into Maine.
The only exceptions to these court decisions have been laws that limited speech in connection with an unlawful intent, such as luring or grooming a minor to engage in illegal sexual activity. The other exception is laws that were limited to speech that meets the three-prong test for “harmful to minors” and was intended to be communicated to a specific person that the speaker has actual, rather than general, knowledge is a minor or believes to be a minor.
History
- The bill was introduced [2] on March 26, 2015 and referred to the Committee on Criminal Justice and Public Safety.
- On April 20, 2015, Media Coalition sent a memo in opposition [1] to the members of the committee, explaining the constitutional issues with the bill.
- The Maine legislature adjourned without passing the bill, but it is carried over to the 2016 legislative session.