Summary
New York Senate Bill 5226 would create §262.02 (3) to criminalize the knowing and intentional dissemination of images that depict sexually explicit conduct by means of the internet, listservs and public chatrooms to a person known or believed to be a minor.
Status
The bill died in the Assembly.
Analysis
The bill would essentially re-enact §235.21 of the New York Penal Code that was struck down as unconstitutional in the Media Coalition case American Library Association v. Pataki. In 1997, U.S. District Judge Loretta Preska ruled that the law violated the Commerce Clause of the U.S. Constitution. It was the first case to rule on a state restriction on sexually explicit speech on the internet. Since this decision, nine similar laws — two federal and seven state legislation — were struck down as unconstitutional.
The only exceptions to these decisions have been laws that were limited to speech that was intended to be communicated to a specific person that the speaker has actual, rather than general, knowledge is a minor or the speaker believes to be a minor.
History
- On May 3, 2011, the bill was introduced [2] and referred to the Senate Committee on Codes.
- The bill passed the Senate on June 17, 2011. The bill was sent to the Assembly for consideration and referred to the Assembly Committee on Codes.
- On June 24, 2011, Media Coalition sent a memo to the members of the committee [1], explaining that an identical law was struck down by the U.S. District Court in the 1997 Media Coalition case, American Library Association v. Pataki.
- The New York legislature adjourned its 2011 session. The bill is carried over to next year.
- On January 4, 2012, the bill was returned to the Senate and re-referred to the Senate Committee on Codes. The committee recommended the bill be passed. The bill was referred to the Senate Committee on Finance.
- The Senate Committee on Finance recommended the bill be passed. The Senate passed the bill on June 5, 2012 and sent it to the Assembly for consideration.
- The New York legislature adjourned its 2012 session. The Assembly took no action on the bill. The bill is dead.