"Harmful to Minors" Laws
Dority, Barbara, The Humanist
We thought we were in the clear again, at least for another year. But after the disastrous November elections left the Republicans firmly in control of the Washington State House of Representatives and the Democrats holding onto a one seat majority in the Senate, perhaps we should have seen it coming--it being a veto override attempt on one of the most tenacious pieces of bad legislation this state has ever seen.
First Amendment activists were gratified last spring when Washington Governor Mike Lowry responded to our call to veto Senate Bill 6003. This so called Harmful to Minors/Child Protection Act is one of many such acts being proposed in various states. (Some states are dusting off "harmful to minors" legislation they've had on the books for years without a single implementation, mostly because authorities don't know how to enforce them.) The purpose of these acts is the same: to ban all manner of currently legal material that might be "harmful to minors."
We've worked for over eight years to prevent this ill conceived concept from becoming law in Washington. Through those years, the concept has remained essentially the same despite the various vehicles its single minded proponents have used to foist it upon Washington citizens. Prior to its passage last spring, the bill had been rejected many times by legislators in Olympia. It has been proposed three times through our state's initiative process. Due to the educational efforts of a broad coalition of anti censorship groups, it has failed each time to gain enough signatures to qualify for the ballot.
You would think that over the course of this eight year period, news organizations would have had ample opportunity to examine this story and get it right--to report in clear, concise, and accurate detail just what this act proposes to ban and what the effects are likely to be. And yet, despite all the times this legislation has surfaced in Washington state, despite all our at tempts to educate citizens about it, and despite Lowry's statement clarifying the provisions of this legislation when he vetoed it, last week's newspaper story was actually headlined "Child pornography bill vetoed by Governor Lowry" Never mind that there isn't a single word in this bill that has anything to do with child pornography!
And now the Republican controlled state legislature is attempting to over ride Lowry's veto. I realize that some bad ideas never die, but this one is a full fledged Frankenstein monster fraught with numerous constitutional and enforcement problems. It will almost surely face a legal challenge if it becomes law.
SB 6003 imposes a ban on materials which are defined as being allegedly "harmful to minors" This has nothing to do with materials in which minors appear (that is, child pornography). Nor does it target materials which are, or may be, legally obscene under the Miller standards. This legislation is aimed at non obscene materials that are now widely available. By creating a new classification of "all matter and live performances" supposedly harmful to minors (amended as those 17 years old or younger), this measure imposes impossible standards upon bookstores, video sales and rental outlets, movie theaters, any type of retail music out let (records, compact discs, and cassette tapes), and might even be applied to radio and television broadcasts.
In addition, these restrictions would apply to all live performances: plays, concerts, dance and musical recitals, street theater, and parades. Many participants in Seattle's annual Gay Pride March, for example, would be in blatant violation of this law. Obviously, it will be impossible to ensure that no person under 17 years of age views (or participates in) this event. Therefore, participants in violation of the new "harmful to minors" standards established in SB 6003 would be subject to immediate arrest.
Anyone who allowed any matter which meets SB 6003's sweeping new standards to be seen by children would face criminal penalties. Even parents are not exempt from prosecution. If charges were brought against a parent, SB 6003 would require a trial at which a court would determine whether the parents' purpose in allowing their child to see the material was "bona fide" Worse yet, SB 6003 establishes no criteria for what would constitute a "bona fide purpose."
SB 6003 creates a three-pronged qualifying test which expands the Miller standards. First, materials which contain descriptions or depictions of particular body parts or sexual activities are prohibited. This list goes far beyond the usual definitions. For example, "sexually explicit nudity" is defined as showing the female breast "with less than a full opaque covering of any portion thereof below the top of the nipple. . . " Depictions or descriptions of "sexually explicit conduct" are prohibited, defined as "physical contact with a person's clothed or unclothed genitals, pubic area, perineum, or . . . breast" Depictions or descriptions of "sexual excite meet" are prohibited, defined as "the condition of the human male or female genitals when in a state of sexual stimulation or arousal; or the depiction of covered male genitals in a discernibly turgid state."
To this day, I'm sure I don't succeed at concealing my amusement at this letter stipulation. But that amusement is immediately tempered when I remember that we're dealing with a proposed law here--and that this language is common to many existing and proposed "harmful to minors" laws in the United States.
Needless to say, there are many books, magazines, and even PG-rated movies and other materials which contain such images and descriptions; many art works (including photography) would also run afoul of these new standards. To name just a few books which could potentially be banned from the eyes of "children" age 17 and under: The Canterbury [ales, Grapes of Wrath, Tom Jones, Goodbye Columbus, Clan of the Cave Bear, The Handmaid's Tale, Hawaii, The Color Purple, Lolita, and Tropic of Cancer.
Second, SB 6003 prohibits the display of material "which the average adult, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest of minors in sex" Exactly what is it that appeals to the prurient interest of minors? (My own experience indicates that just about any thing would qualify.) And is an appeal to a minor's prurient interest in sex to be judged by the same standards when the child is eight or 10 years old as when he or she is 17?
Third, SB 6003 prohibits display to minors of material which "lacks serious literary, artistic, political, or scientific value for minors" Why would materials already protected because they have such value for adults take on a different and lesser value for minors?
There is no provision in SB 6003 for a speedy hearing. The only way to determine the status of challenged ma serial is to test it against the above standards in a full criminal trial. It is inevitable that such a law will be used as a tool of harassment and intimidation. Legal counsel for bookstores, video stores, movie theaters, news outlets, and so on would be forced to cull their stock to weed out potential problems.
Under the above standards, video dealers would have to eliminate most of their R-rated and many PG-rated tapes. Music distributors would have a particularly difficult problem, since a large portion of their market are those age 17 and under.
Proponents of this bill seem to think that retail outlets could simply set up "separate adult sections" But implementation of such an arrangement would be discriminatory, subjective, a fiscal disaster, and an administrative nightmare. None of these providers would have the capacity, space, or ability to segregate all materials which potentially violate SB 6003. Indeed, no one would know until someone has been prosecuted which materials to remove or segregate.
Proponents maintain that a primary intent of "harmful to minors" laws is to protect children from pedophiles who use certain materials to seduce them. This is truly wishful thinking, at best, especially since the vast majority of child molestations take place within the family and do not involve the use of any form of "pornography."
I become more convinced every year that these proliferating "harmful to minor" laws will have far reaching and frightening consequences. In a society hysterical about crime and willing to buy anything that purports to "protect" children, it isn't easy to oppose these laws. But once they are clearly under stood, I don't believe the majority of Americans--including those who are parents--really want to open the door to such widespread government censor ship. And, as always, it is our moral duty to speak the truth--no matter how unpopular our opponents seek to make it.
Barbara Dority is the president of Humanists of Washington, the executive director of the Washington Coalition Against Censorship, and cochair of the Northwest Feminist Anti Censorship Taskforce. She serves on the board of the Hemlock Society of Washington State, edits its newsletter, Hemlock News, and was the founding president of Compassion in Dying.…
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Publication information: Article title: "Harmful to Minors" Laws. Contributors: Dority, Barbara - Author. Magazine title: The Humanist. Volume: 55. Issue: 2 Publication date: March-April 1995. Page number: 42+. © 1999 American Humanist Association. COPYRIGHT 1995 Gale Group.
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