Summary
Missouri S.B. 733 would require internet service providers to block their customers’ access to depictions — and possibly descriptions — of nudity and sexual activity. It would include clothed contact of the buttocks, sadomasochist abuse and simulated sexual conduct.
Presumably, the internet service providers would use filtering software to block this content. It must then redirect the subscriber to a page that explains that the site was blocked and allow the subscriber to enter a password to access the site.
Adult subscribers are allowed to create a password to gain access to the website. The password could not be saved, so the subscriber would have to manually enter the password each time he or she attempted to access a blocked website. Also, the password would have to be changed every three months. The procedure for creating, recovering or changing the password must have multifactor authentication. The bill makes it a misdemeanor for an adult to give his or her password to a minor.
In addition to these requirements, each internet service provider must also create a website, call center or other reporting mechanism to allow a person to report blocking of non-obscene material or the failure to block obscene material. Once a report is made, the provider has up to 10 days to assess the content and block material that must be blocked or unblock speech that should not have been blocked. The attorney general must also create a reporting system to decide whether material should or should not have been blocked. Any decisions made by the attorney general must be reported to the internet service provider of the person who reported the over- or under-blocking. The attorney general may seek injunctive and equitable relief if a provider fails to comply with the bill.
Status
The bill is in the Senate Commerce, Consumer Protection, Energy, and the Environment Committee.
Action
On February 28, 2020, Media Coalition submitted a memo in opposition to the Senate Commerce, Consumer Protection, Energy, and the Environment Committee.
Analysis
This bill is similar to mandatory internet filtering legislation, and it is unconstitutional for similar reasons.
The material blocked by this bill goes beyond the Miller/Ginsberg test for harmful to minors material that may be blocked for minors. Even if the bill was amended to follow the Miller/Ginsberg test, it still violates the First Amendment rights of adults and older minors to view material that is legal for them to access.
The bill is also an unconstitutional prior restraint and violates due process protections for speakers. Publishers, authors, filmmakers, and other speakers have a First Amendment right to speak without interference by the government. It cannot block speech before providing full due process protections. In this bill, if one’s speech is incorrectly blocked, the speakers can only appeal to the internet service provider of the attorney general, in a process that can take 10 days or longer. There is no recourse to challenge the determination of the service provider or attorney general. The burden is on the state to prove material is obscene by gathering evidence and bringing charges in an adversarial judicial proceeding. Instead, this bill requires speakers to vindicate their constitutional right to speak. Even if the internet service provider is the one doing the censorship, the government cannot force device manufacturers and retailers to act as its agent to suppress speech.
In addition, mandatory filters inevitably block a substantial amount of material that goes beyond the Miller/Ginsberg test. This is why the Supreme Court has struck down a similar federal law that required mandatory filters for all internet users, finding that voluntary filters are a less restrictive means. Voluntary filters allow a user to decide what material is appropriate for themselves or their children without censoring the internet for everyone else.
History
On December 1, 2019, the bill was prefiled.
On February 13, 2020, the bill was referred to the Senate Commerce, Consumer Protection, Energy, and the Environment Committee.
On February 28, 2020, Media Coalition submitted a memo in opposition to the Senate committee, explaining why the bill is unconstitutional.