Summary
Mississippi House Bill 195 would criminalize the intentional or knowing dissemination to anyone less than 16 years of age any communication that is “harmful to minors” by means of the internet, with knowledge of the character of the communication or item, when the person believes that a person under the age of 16 will receive the communication. “Harmful to minors” is not defined.
Status
The bill died in the House.
Analysis
The lack of a definition of “harmful to minors” in the bill is almost certainly unconstitutionally vague. There is nothing in the bill or in existing state law that defines “harmful to minors” with respect to speech. A state may not impose criminal sanction on speech without defining what speech is prohibited. When speakers have little guidance to determine what speech is protected and what is subject to prosecution, they must either risk a criminal prosecution or self-censor their speech.
“Harmful to minors” is used at times to define sexual material that is illegal for minors but neither this bill nor any existing Mississippi statute defines the term as set out by the Supreme Court. One section of state law restricts minors’ access to sexual material, but the definition lacks the safeguards required by the Supreme Court. Though minors do not enjoy the protection of the First Amendment to the same extent as adults, governments may restrict minors’ access to speech only in relatively narrow and well-defined circumstances. This narrow range is material is determined by three-prong Miller/Ginsberg test.
The definition used in existing state law of what material is “sexually oriented” lacks any prongs from the Miller/Ginsberg test.
Even if H.B. 195 defined “harmful to minors” as sexual material that met the three-prong test in Miller/Ginsberg, it would still be unconstitutional if the restriction were applied to the internet. The effect of banning the computer dissemination of “harmful to minors” material is to force websites to deny access to both minors and adults, depriving adults of their First Amendment rights. Courts have struck down similar laws in other states. The only exceptions to these decisions have been laws that were limited to speech illegal for minors that 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
- On January 4, 2011, the bill was introduced [2] and referred to the House Committee on Judiciary.
- The committee recommended the bill be passed. The House passed the bill on February 10, 2011.
- The Senate made slight changes to the bill. The Senate passed the bill on March 9, 2011. The bill was sent back to the House for concurrence.
- On March 14, 2011, Media Coalition submitted a memo to the members of the House [1], explaining the constitutional issues with the bill.
- The bill died in the House.