Senate Appropriations Sidelines Effort to Ban Porn Sales to Kids

A bill that would have made it a crime to sell pornography to minors in the state died in the Senate Appropriations Committee Friday.

SB 125 was a broad effort to shield minors from exposure to nudity or displays of sexual activity. The bill provided that violation of the ban would be a misdemeanor.

The bill's specific criteria for determining whether sex-related material violated the ban is one source of the controversy surrounding the proposal. The language employed by bill sponsor Sen. Ted Harvey, R-Highlands Ranch, was as follows:

"A material or performance is deemed harmful to minors if the material or performance depicts nudity or sexual activity and if the material or performance, when taken as a whole, meets the following criteria:

(a) a reasonable adult person would find that the material or performance has a predominant tendency to appeal to the prurient interest of minors; and
(b) a reasonable adult person would find that the depiction of nudity or sexual activity in the material or performance is patently offensive to prevailing standards in the adult community concerning what is suitable for minors; and
(c) a reasonable adult person would find that the material or performance lacks serious literary, artistic, political, or scientific value for minors."

This language was drawn from a federal statute called the Child Online Protection Act, which was enacted into law by Congress in 1998. That law and a predecessor called the Communications Decency Act were ruled unconstitutional as a violation of the First Amendment in two cases decided by the U.S. Supreme Court.

The Court has held that the First Amendment does allow legislatures greater latitude to restrict the access of minors to pornographic material to minors than would be allowed for adults, but there is uncertainty about whether this "community standard" criteria is constitutional. The Court did not have a majority of its members agreeing that the First Amendment allows pornographic material to be banned with such language in either of the cases ruling on the constitutionality of COPA or CDA.

In addition, opponents of the bill have raised concerns that, whether or not it is consistent with the First Amendment to the U.S. Constitution, it has a higher likelihood of being in conflict with the state constitution's speech clause.

In any event, the decision by the Appropriations Committee turned on money, not the freedom of speech.

Republican Sen. Steve Johnson of Fort Collins was apparently perplexed by the majority's conclusion that there's not enough to pay for the bill's mandate.

"There is an appropriate, unexpended, unaccounted for funding source," Johnson said.

SB 125 had previously been approved by the Senate Judiciary Committee when Sen. Dan Gibbs, D-Silverthorne, joined with three Republicans on that committee to support the measure.