THE MEDIA COALITION INC.

E-MAIL: MEDIACOALITION@MEDIACOALITION.ORG

January 21, 2001

Re: House Bill 1089

Dear Chairman,

The members of Media Coalition believe that South Dakota House Bill 2468 violates First Amendment rights of children. The members of The Media Coalition represent most of the publishers, booksellers, librarians, periodical distributors, recording, movie and video game manufacturers, and recording and video retailers in South Dakota and the rest of the United States. They have asked me to explain their concern.

H.B. 1089 would make a petty offense to sell or rent any movie or motion picture with a restricted rating to anyone under 18, unless accompanied by a parent or guardian. H.B. 1089 would also make it a petty offense to sell or rent a sound recording with a parental advisory sticker to anyone under 17, unless accompanied by a parent or guardian.

While voluntary rating or labeling systems exist to help parents determine what is appropriate for their kids a government enforced rating system is unconstitutional. Courts in nine different states have ruled it unconstitutional to either enforce the Motion Picture Association of America’s rating system or to financially burden movies that do not carry an M.P.A.A. rating. MPAA v. Specter, 315 F. Supp. 824 (E.D. Pa. 1970), enjoined enforcement of Pennsylvania statute that penalized exhibitors who showed movies unsuitable for family or children viewing, as determined by CARA ratings. Eastern Federal Corporation v. Wasson, 316 S.E. 2d 373 (S.C. 1984), the court ruled that a tax of 20% on all admissions to view movies rated either "X" or unrated was an unconstitutional delegation of legislative power to a private trade association.

Further, while minors do not enjoy the protection of the First Amendment to the same extent as adults, the U.S. Supreme Court has ruled that "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). In the case of Ginsberg v. New York, the U.S. Supreme Court established a three-part test for determining whether material is "harmful to minors" and may, therefore, be banned for sale to minors. The mere presence of an "R" rating or a voluntarily affixed label alerting parents that a movie or recording might be inappropriate for minors is no basis for assuming that the recording meets the Ginsberg test. It is likely that most rated or labeled recordings would not meet the Ginsberg test for harmfulness. Therefore, a law imposing a fine for the sale or rental of such material would inevitably prevent minors from purchasing works that they have a First Amendment right to possess.

Passage of H.B. 1089 would likely violate the First Amendment and could prove costly. If a court declares it unconstitutional, there is a good possibility that the state will be ordered to pay the attorneys' fees of the parties who challenge the law. In 1991, Missouri was forced to pay nearly $200,000 in attorneys' fees when a court struck down a restriction on the sale of violent material to minors, Video Software Dealers Assn. v. Webster, 773 F. Supp. 1275 (W.D. Mo. 1991).

Because it threatens the distribution of constitutionally-protected works, H.B. 1089 will be vulnerable to a legal challenge if it is enacted. If the law is overturned, the state could be ordered to pay the plaintiffs' attorneys' fees.

Please protect free speech by rejecting H. B. 1089.

Thank you.

Sincerely yours,

David Horowitz

Executive Director