Summary
Tennessee H.B. 2294 would require internet service providers to block access to “pornographic” material for all users. A failure to do so shall be treated as a deceptive or unfair act or practice and is subject to penalties under the Tennessee Consumer Protection Act. The bill does not define the term “pornographic” in the text or by reference.
Status
The bill is in the House Consumer and Human Resources Committee.
Action
On March 3, 2020, Media Coalition submitted a memo in opposition to the House Consumer and Human Resources Committee, ahead of a scheduled hearing on March 4, 2020.
Analysis
This bill is similar to mandatory internet filtering legislation.
It is not clear from the bill’s structure if the parental controls can be deactivated to allow anyone to access “pornographic” content, but even if they can, some users will not be able to do so because they do not have access to the parental controls. Also, speakers who have a right to disseminate such content will have their speech blocked for many users of the internet. At the same time, internet service providers, using filtering software, will inevitable block valuable content like sexual health information, art and photography books and romance novels. However, since the material is deemed to be “pornographic,” many users will decline to unblock the content because they assume it is either obscene for audlts or for minors or is limted to the most explicit images and videos.
“Pornographic” content is not a historic exception to the First Amendment. Some sexual material may be blocked for adults if it is obscene, as defined by Miller v. California, or for minors if it is harmful to minors, as defined by the Miller/Ginsberg test. Because “pornographic” is not defined, this bill would block more material than what is permitted to be blocked for adults or to be blocked for minors.
To create a new content-based restriction on speech outside of the historic exceptions, the law must satisfy strict scrutiny. This bill would fail the compelling state interest, as it requires private companies to block material that is neither illegal for adults as obscenity or for minors as harmful to minors. This bill would also likely faily the least restrictive means test, because it mandates the use of filters. The Supreme Court has previously cited voluntary filters that are activated and operated by parents as the best way to block unwanted speech online, instead of mandatory filters that block content for everyone.
Even if this bill was limited to blocking minors’ access to harmful to minors material on the internet, it still violates the First Amendment rights of adults and older minors to view material that is legal for them to access.
Even if the bill was limited to material defined as obscene, the bill would still be an unconstitutional prior restraint on speakers, because it blocks access to speech they are disseminating before providing them with full due process protections. Speech can only be blocked for adults after a court makes the determination that is obscene. The government cannot get around these constitutional requirements by outsourcing its censorship regime to internet service providers to act as its agent to suppress speech.
History
On February 4, 2020, the bill was introduced. It was referred to the House Consumer and Human Resources Committee.
On February 26, 2020, the House committee scheduled a hearing on the bill for March 4, 2020
On March 3, 2020, Media Coalition submitted a memo in opposition to the House committee, ahead of the hearing.