Legislature(1993 - 1994)
03/28/1994 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 487 - SALE/DISPLAY OF MATERIAL HARMFUL TO MINOR Number 752 REP. PETE KOTT, prime sponsor of HB 487, read his sponsor statement into the record as follows: "The introduction of this bill was a result of my concern with the growing number of violent crimes in Alaska. Cases of reported rape, for example, have nearly doubled since 1989. Furthermore, there is growing evidence that violent crimes, especially rape and murder are more frequently committed by the young people in our society. I believe that a contributing factor in this rising violence among young people is the increased frequency of sex related violence as a theme, things like rock-n-roll, and rap music, more specifically. This conclusion has been supported by the U.S. Attorney General's Commission on Pornography, which found that exposure to sexually violent material resulted in acts of sexual aggressiveness and anti-social behavior. Thus, it is self-evident that some material, whether in visual or oral format may not be suitable for distribution to children. At a minimum, the seller should make some attempt to shield innocent young people from unwanted contact with such material. This bill, while recognizing the constitutional restraints imposed on the legislature's right to curtail distribution of certain material, acts on the state's legitimate interest in providing some level of protection to children who may be harmed by unwanted exposure to this sexually explicit material. The bill would prohibit the sale to minors of certain sexually explicit material. It would require that printed matter that falls into the definition of material harmful to minors and is displayed where minors are apt to view the materials, must be sealed in an opaque wrapper or placed in what's called a blinder rack. Recording materials such as CD's, tapes, and those type of things, would require opaque wrappings or blinder racks only if the offensive matter is depicted on the cover or packaging. The definition of material harmful to minors is drawn from the obscenity definition set forth by the U.S. Supreme Court, as applied to minors. The bill that we have before us, I think, is a very important one. I certainly believe that the messages and values that young people learn from the prevailing culture, which is us here at this table, will determine how they live their lives, and in turn, the ultimate nature and character of our society. What this bill does is recognize that the state has a compelling interest in protecting the health, safety and morals of its minors. It recognizes that some materials harmful to the health, safety and morals of minors, even though the same material, perhaps is not as obscene to adults. It establishes very clear, a definite, narrowly tailored guideline for determining what material is in fact harmful to minors. In doing so, in this area it follows the standards established by the U.S. Supreme Court. It recognizes that minors in Alaska are exposed to commercial establishments, to material harmful to minors. It also acts to solve this problem by curtailing access by minors, to material that is, in fact, harmful to them. It proscribes the sale to the minors, of material harmful, and proscribes the display for sale of material harmful to minors. REP. KOTT continued, "Let me just kind of briefly, elaborate and articulate what this bill does not do. It does not apply to noncommercial settings, such as homes, libraries, or schools, only sale or display for sale fall within its purview. It does not proscribe the sale of any material to adults. It does not automatically reach all sex-related materials. If I might just depart very briefly, and read into the record, written testimony that was received earlier by a person named Ann Barnes which reads `Alaska is number one in the United States in cases of child sexual abuse. Based on the facts, we do know about the affects, emotionally and psychologically, on children who have been exposed to pornography, or to adult sexually-explicit material and the lasting damage it causes, not to mention the statistics that connect these materials with child sexual abuse. HB 487 is long overdue.' Unfortunately, she could not be with us today." Number 848 REP. JAMES inquired whether it could be explained to her just what this bill does and just what we want to stop? Number 851 REP. KOTT responded that this bill does two things. First of all, it articulates very clearly that if you are displaying or selling this kind of material, that's addressed in the bill, you cannot sell it to minors, anyone under 18. Secondly, if you are selling it in a commercial establishment, you must ensure the material that falls into the category of "harmful to minors" you must cover it. Number 868 REP. JAMES remarked that one of the problems we have always had with pornographic material is to define just exactly what it is and she would like to have the language pointed out, in this bill, that sufficiently describes this so there is absolutely no question as to what can and cannot be available in a store where children are. Number 880 GEORGE DOZIER, Legislative Assistant to Representative Pete Kott, responded that the definition of matter which is harmful to minors, which is a take-off of the old obscenity standard, adopted to materials we are concerned about. That definition is contained on the bottom of page 2, beginning on line 28 and it carries over to page 3, line 8. It essentially is a definition which is taken from Miller v. California, an obscenity case where the Supreme Court described... TAPE 94-53, SIDE B Number 000 MR. DOZIER continued...what had to be satisfied for the state has any business regulating or proscribing obscenities. What we have done in HB 487 and adapted it as permitted by another case, Ginsburg, where the court stated in essence, that even when material is not obscene, it still can be regulated concerning minors' contact with that material, even though it is not considered to be obscene by adult standards. This bill takes language used in Ginsburg and adapted it to include a later definition of obscenities that is contained in Miller. Number 087 REP. JAMES inquired as to where the line is drawn in this issue? Number 108 MR. DOZIER responded that the line has been drawn by the U.S. Supreme Court in articulating the standard. He continued by stating that it would be up to a jury to decide whether a specific material would be found to cross the line. Just because something is suggestive is not enough to meet one of the criteria established in the bill. It would have to be patently offensive, it has to be lacking in literary, scientific, education, artistic, or political value for minors and it has to be representative of nudity or sexual conduct or sexual excitement or sado-masochistic abuse. Number 154 REP. GREEN inquired if there was a chance that because certain areas of the state, or juries in certain areas of the state, could render different opinions as to what is offensive or not? Number 181 MR. DOZIER responded he felt any tendency toward disparity of treatment or disparity of result is alleviated by the fact that this bill defines contemporary community standards as contemporary standards prevailing in this state as a whole. Number 184 REP. PHILLIPS inquired as to whether this bill would be an attempt to legislative morality that is perhaps something that we couldn't put in writing in the form of legislation. Number 196 CHAIRMAN PORTER remarked that we have had and currently have laws against prostitution and that basically is a morality issue, although it may be a health issue right now. Number 210 REP. PHILLIPS expressed her concern that the first statement of the bill that states that "the State of Alaska has a compelling interest in protecting the morals of minors" and she felt that would lead us to the conclusion that we are trying to legislate morality. Number 214 REP. KOTT responded that that statement would have to be included per an earlier case to establish some commitment by the state in the event a particular case was challenged under this law. Number 222 REP. DAVIDSON asked if someone was available to address the constitutionality of such a proposal? JERRY LUCKHAUPT, Legislative Legal Counsel, responded that several jurisdictions have laws similar to this. Those laws have been upheld in a number of cases. In the city of Wichita; their ordinance is sort of the basis for this draft before you now. That was based upon something that Minneapolis has adopted. The municipality of Anchorage has an ordinance like this also. As far as I know, those statutes have not been struck down as being unconstitutional at this point. As George Dozier indicated, the U.S. Supreme Court in Ginsburg, which is a state of New York case, the Court said the state has the authority to regulate materials that are not necessarily obscene in regards to adults, but could be considered to be deleterious to the health, safety and morals of minors. Number 336 REP. PHILLIPS inquired as to whether there have been any challenges to the municipality of Anchorage law? MR. LUCKHAUPT responded not that he has heard of. He further remarked that a change made in the Labor & Commerce Committee relating to the term "contemporary community standards" and that they applied a statewide definition to contemporary community standards. He stated that could be a constitutional problem vis a vis the idea of what is obscene or not. The Supreme Court looked at a contemporary community standard and to the extent that the Court relied on a local definition as to what those standards are that the jury would apply and the prosecutor would apply in deciding whether or not to prosecute a case. To the extent we have a different definition of community standards and that we apply one that is statewide, it could raise constitutional questions. Number 408 REP. GREEN asked how a statewide definition of community standards would be established? Number 414 MR. LUCKHAUPT responded that they would be established by expert testimony between a prosecutor and a defense attorney before a jury. Then the jury would render an opinion based upon what their understanding of the state is. Number 427 REP. KOTT asked, based on suggestion, information or material on the front cover of Cosmopolitan, it would not meet the test as defined in the Miller case, that taken as a whole the material lacks serious, literary, scientific or educational, artistical, or political value. So the cover in itself would not essentially require that this material be covered or not sold to minors? Number 436 MR. LUCKHAUPT responded that in most cases that would be true. He continued by saying that under this act we do require things to be covered if the materials inside, if they do describe things or materials that would lack this value for minors, including some of the articles in Cosmopolitan you could say lacked serious literary, scientific, educational or political value for minors. Combining that with the earlier definitions that they have to depict nudity or sexual conduct or something like that, in certain situations it could. Number 472 REP. PHILLIPS remarked that if a municipal ordinance already prohibits Cosmopolitan magazine from being put on display, they have it covered now, that could bring up the difference too that we are talking about, in some cases it could be local ordinances that would prohibit this type of display of material. Number 476 REP. PORTER remarked that for clarification, when he mentioned Cosmopolitan magazine, that very well could be the policy of the store, not the law. REP. JAMES inquired as to whether the reference to children or to minors is two different things, and what are we referring to, and children being children, say age 12 and under, would be the most at risk? She remarked that we don't take any responsibility ourselves, and thus should we legislate what we should or shouldn't do for our children. The issue to her is do we have, as a government, a right to impose that upon the people without taking any responsibility ourselves for what our children do? Number 531 DANIELLA LOPER, Judiciary Committee Aide, inquired about the Pope case and the fact that the Pope case came out after the Miller case and inquired as to whether the standards for community conduct, might pose a problem? Number 540 MR. LUCKHAUPT responded that he was not familiar with the Pope case. Number 580 REP. KOTT remarked that discussion on this particular issue has already been dealt with. He believed the Pope case deals with the third prong, the tripartite test established under Miller. We are not applying community standards with the first (inaudible) in which community standards are dealt with that was affirmed in the Miller case. Again, under Jenkins v. Georgia, the Supreme Court said in their ruling the Constitution does not require that juries be instructed in state of society cases to apply the standards of a hypothetical statewide community. Number 604 MR. LUCKHAUPT again remarked that he had not read Pope. Number 621 REP. DAVIDSON asked if Mr. Luckhaupt could address what is considered a tougher free speech standard in Alaska's Constitution compared to other states. Number 625 MR. LUCKHAUPT responded that we have greater right to privacy standard that exists. I'm not sure we have a greater free speech standard that exists. The right to privacy standard would enter into the possession of obscene material by adults. I think there would be a distinction here by the possession of material by minors. Number 681 REP. KOTT remarked that the first amendment of the U.S. Constitution says Congress shall make no law abridging the freedom of speech and we do have a corresponding provision in Alaska's constitution that provides the opportunity for a person to speak or publish freely, but it does not provide an opportunity to provide access freely to that information. CHAIRMAN PORTER inquired as to whether there was a provision that said that we would have to cover the material displayed on a publication if there were descriptions that we would find harmful within the publication descriptions? Number 715 MR. LUCKHAUPT responded that if you display material which is harmful to minors, and that includes the covers and packaging of the material, in a place where minors are present and able to view the material, not just the covers, then each item of the material must be sealed in an opaque wrapper or kept behind blinder racks. It doesn't matter if the material harmful to minors is just on the cover. Number 743 CHAIRMAN PORTER inquired as to why you would put an opaque wrapper on material that is not offensive on its face? Number 747 MR. LUCKHAUPT responded that on the cover of it, the requirement of an opaque wrapper is that the juvenile can't just open up the book and look at whatever the material is. He further responded that on page 2, lines 14 - 18, the reference in the legislation is to other than printed material. Number 777 REP. JAMES inquired as to whether music recordings and those kinds of things are covered and where those items fit into this discussion? Number 786 MR. LUCKHAUPT responded that the definition of material on page 3, lines 9 through 11 includes motion picture film, record, compact disc, recording tape or video tape. Number 790 REP. JAMES followed up by asking if a minor were to see a display case with offensive material wrapped up, would that be an enticement for them to just go look? What is to be gained by that issue? Number 810 MR. LUCKHAUPT responded that a little of that is what Labor and Commerce Committee tried to deal with. That issue of the tapes and video tapes, if its not on the cover, if the material harmful to minors is not on the cover, if you don't have a visual depiction of what is material that is harmful to minors, then they don't have to cover that material up. They still couldn't sell that material to a person under the age of 18, to that extent, they will have to rely on some representations from the manufacturer. Number 838 CHAIRMAN PORTER remarked that there were a couple of issues; one is that we are saying that "harmful to minors means any description or representation in whatever form of these things that fall under the three prong test" and that would mean a verbal recitation in paragraph form of one of these acts if it met all these tests. So, are we in effect saying, that any bookstore open to the public, where they have racks and racks of books, that one, if there is that kind of paragraph inside the book, that they may not sell that to a minor. Number 850 MR. LUCKHAUPT responded that they may not sell that to a minor, that would be correct. Number 851 CHAIRMAN PORTER remarked that secondly, under legal's interpretation, as this is worded, they would have to cover that with a binder board or an opaque wrapper. Number 854 MR. LUCKHAUPT responded that if the material is offered for sale in a place where minors are present or allowed to be present, then it would have to be kept behind a binder board or opaque wrapper. Number 860 REP. PHILLIPS stated on page 2, line 5, it only deals with selling and she would like us to deal with renting of such material also. TAPE 94-54, SIDE A Number 000 CHAIRMAN PORTER declared that HB 487 would be held in committee and declared the House Judiciary Standing Committee adjourned at 3:05 p.m.
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