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Louisiana Senate Bill 152: Restricting Minors' Access to Media
Memorandum in Opposition to Lousiana Senate Bill 152
The members of Media Coalition believe that Senate Bill 152 likely violates the First Amendment rights of producers and retailers and their customers. The trade associations and other organizations that comprise Media Coalition have many members throughout the country, including in Louisiana: book and magazine publishers, booksellers and librarians, as well as manufacturers and retailers of recordings, films, videos, and video games and their consumers.
S.B. 152 raises serious constitutional concerns. It allows anyone to file a complaint with the attorney general's office claiming that a retailer had distributed to a minor material that depicts "sexually explicit conduct." The attorney general's office would then be required to send a certified letter to the retailer with a warning that if the retailer distributes such material to a minor a fifth time, the retailer may be sued by the attorney general. After the fifth alleged instance, the attorney general could investigate the retailer and ultimately bring a lawsuit seeking monetary damages, injunctive relief, or both. The bill also provides a cause of action that allows an individual to sue a retailer by alleging five instances of the retailer distributing sexual content to a minor if the retailer had previoulsy received a warning letter from the attorney general. The individual can seek actual damages and legal fees. "Sexually explicit conduct" is defined as graphic sex acts, masturbation, sado-masochistic abuse if the genitals, breast or pubic are are exhibited, or actual or simulated lascivious display of the genitals or pubic area.
This definition of sexual conduct would include content well beyond what is not protected by the First Amendment. While minors do not enjoy the protection of the First Amendment to the same extent as adults, as the U.S. Supreme Court has ruled, "minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected material to them." Erznoznick v. City of Jacksonville, 422 U.S. 212-13 (1975). Governments may restrict minors' access to some sexually explicit speech, but such restrictions are limited to a narrow range of material determined by a specific test. Mere sexual content is not enough to make speech of any kind illegal. The Supreme Court established a three-part test for determining whether material is "harmful to minors" and may therefore be banned for sale to minors. Ginsberg v. New York, 390 U.S. 629 (1968) as modified by Miller v. California, 413 U.S. 15 (1973). The definition of sexual material in this bill does not include any of the three-prong test from Ginsberg and would apply to a far broader range of material than is allowed under the First Amendment. A recent law enacted in Illinois barred the sale of video games with sexual content with only two of the three prongs of the Ginsberg test. The law was permanently enjoined by the U.S. District Court, and the ruling was affirmed by the Seventh Circuit Court of Appeals. ESA v. Blagojevich, 469 F.3d 642 (7th Cir. 2006) affirming 404 F. Supp. 2d 1051 (N.D. Ill. 2005). If such material meets the definition of material obscene for minors and is being sold to minors, the attorney general should be pursuing a criminal investigation. However, to the extent that material is constitutionally protected for minors, government cannot attempt to restrict such material by converting it into a civil violation and deeming it an unfair or deceptive trade practice.
Even if this bill were limited to material that was obscene for minors, it would still be constitutionally suspect. It is the job of the courts, not a customer of a book or video store, to make this determination. Speech is presumed legal until a court rules otherwise in the process that includes all due process protections. The attorney general may not send warning letters to retailers threatening future action for the sale or rental of books, movies, magazines, or other media. In Bantam Books v. Sullivan, 372 U.S. 58 (1963), the U.S. Supreme Court struck down a similar scheme of regulation as a form of "informal censorship." In this instance, the likelihood of such a letter is exacerbated because S.B. 152 would require the attorney general's office to send such a letter in response to almost any complaint regardless of its veracity. If the attorney general determines that a retailer is selling or renting material obscene for minors, then the proper action is to pursue a criminal prosecution, not to send warning letters and threaten a suit.
Potentially more troubling than an investigation by the attorney general is the prospect of lawsuits by an individual for damages and legal fees. It is dangerous for the government to turn over the power to punish speech to individual citizens. The mere threat of such lawsuits would create a substantial chilling effect on retailers who sell or rent sexual content. They are expensive to defend in both time and money. In 1984, Indianapolis enacted an ordinance that sought to give women "injured" by the production and distribution of pornography depicting or describing the subordination of women a cause of action against producers and and distributors of the material. This material may have been offensive but was not illegal for adults or minors. The ordinance was struck down in district court. The decision was upheld unanimously by a three-judge panel of the appeals court and summarily affirmed by the Supreme Court. American Booksellers Assn. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd, 475 U.S. 1001 (1986). A virtually identical ordinance was enacted in Bellingham, Washington, and was also struck down. Village Books v. City of Bellingham, No. C88-1470D (W.D. Wash. Feb 9, 1989).
The significant chilling effect of a civil cause has been the rationale for barring such suits even in cases where there has been actual physical injury that was blamed on some type of speech. Courts have repeatedly held that absent an actual incitement to lawless action or libel and defamation, those who produce or sell First Amendment-protected material may not be subjected to financial liability for the unlawful or violent acts of third parties, even if they were influenced by specific media. Brandenburg v. Ohio, 395 U.S. 444 (1969). Even in cases where the perpetrator or victim had copied what they saw or read, courts have barred or thrown out suits seeking civil damages. See, DeFilippo v. NBC, 446 A.2d 1036 (R.I. 1982) (parents of deceased minor brough wrongful death action after their son hanged himself copying a stunt he saw on The Tonight Show); Herceg v. Hustler Magazine, Inc., 814 F.2d 1017 (5th Cir. 1987) (court reversed verdict in wrongful death action brought by parents against publisher for adolescent's death allegedly caused by article that described autoerotic asphyxia); Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624 (1989) (wrongful death action brought by father of person killed by perpetrator who had just seen the movie The Warriors even though he quoted lines from the movie while committing the crime); Zamora v. CBS, Inc., 480 F. Supp. 199 (S.D. Fla. 1979) (teenager sued the television networks for violent programming that he alleged caused him to commit criminal acts).
Passage of this bill could prove costly. If a court declares it unconstitutional, there is a good possibility that the state will be ordered to pay the plaintiffs' attorneys' fees. In the successful challenge to the Illinois legislation, the state agreed to pay to the plaintiffs more than $500,000 in attorneys' fees.
If you would like to discuss further our position on this bill, please contact David Horowitz at 212-587-4025 #11 or at horowitz@mediacoalition.org.
Again, we ask you to please protect the First Amendment rights of all the people of Louisiana and defeat this legislation.
updated 6/1/09
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