Summary
West Virginia Senate Bill 640 would bar the dissemination or display to minors of depictions or descriptions of nudity or sexual conduct. It would criminalize the dissemination or display of such content by brick and mortar retailers and theaters and via the Internet.
A violation would be punishable by up to five years in prison, a fine of $2,500 or both. The legislation also creates an increased risk of conviction for a retailer who does not employ blinders or opaque bagging to restrict the display of such material.
Status
The West Virginia legislature adjourned its 2013 session. The bill is now dead.
Analysis
The definition in the bill of what material is illegal to disseminate to a minor is unconstitutionally vague and overbroad. It does not include any of the prongs from the Miller/Ginsberg test, which defines what material the Supreme Court has said may be proscribed for minors.
Even if the definition of what material is illegal for minors incorporated the three-prong test in Miller/Ginsberg, it would be unconstitutional if the restriction was applied to general communication on the internet, listservs, in public chat rooms and social networking websites. Courts have repeatedly ruled that such laws violate the First Amendment because they restrict the speech of adults on the Internet to what is acceptable for minors.
The provision that punishes retailers for choosing not to create an “adults only” area of a store or use “blinder racks” or opaque bagging is also concerning. Although courts have ruled that some limitation on the display of sexual material that meets the Miller/Ginsberg test, they have also ruled that these limitations may not unreasonably hinder the access of adults. Retailers must make a reasonable effort to prevent minors from perusing such material, but the government cannot penalize them for electing not to segregate material or use blinders or opaque bagging.
History
- On March 25, 2013, the bill was introduced [2] and referred to the Senate Committee on Judiciary.
- Media Coalition submitted a memo in opposition [1] to the members of the committee the following day. The memo explained the constitutional issues with the bill.
- The West Virginia legislature adjourned its 2013 session. The bill is now dead.