Republican Supports "Safe Storage" Law for Books

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Republican Supports "Safe Storage" Law for Books

by Ari Armstrong, January 21, 2004

A Speakout column of mine titled "Explicit materials bill open to abuse" appeared in the January 19 edition of the Rocky Mountain News. (See below. For updates about the bill, see Legislative Updates, January 31.) Here I expand on my critique of HB-1078, sponsored by Ted Harvey.

Harvey's bill is ridiculously broad. The bill seeks to create criminal penalties for displaying or disseminating sexually explicit material to minors. While I do think limited legislation is appropriate in this area, Harvey's bill is far more dangerous than the harms it purports to solve.

1078 passed through House Judiciary on January 13, and was laid over today (meaning the full House will not vote on it until tomorrow at the earliest). A Denver Post article on January 14 by Julia Martinez reports, "The bill outlines three 'commercially feasible measures' that bookstores and other establishments can take to prevent harmful displays: Place the materials behind a sales counter; place an opaque cover over them; or move the material away from a display window where it might be seen by minors. One Democratic lawmaker, Rep. Betty Boyd, suggested removing the display provision from the bill. But Harvey strenuously objected." The following members of Judiciary voted in favor of the bill: Hefley, Stengel, Smith, Clapp, Decker, Lee, Jahn, and Boyd. Voting "no" were Carroll, Judd, and McGihon.

Unfortunately, some of Harvey's detractors have set up a straw man, which in turn encourages Harvey to dismiss his critics. The bill covers only material such that "a reasonable adult person would find that the material or performance lacks serious literary, artistic, political, or scientific value for minors." This excludes a vast amount of material. For example, an art history book with images of nudity would not be covered by the bill. Likewise, sexually explicit material from, say, the Bible's Song of Solomon ("You are stately as a palm tree, and your breasts are like its clusters. I say will climb the palm tree...") is obviously of "serious" artistic merit.

On one end of the spectrum of material, the overwhelming majority of people will agree the material has "serious value." On the other end of the spectrum, most will agree that some material is merely pornographic (without "serious value"). The trouble is that there is quite a large gray area, and nobody's gray area is the same. Indeed, the gray areas of two perfectly normal, reasonable people might not overlap at all. It is because people so often disagree about such matters that Harvey's bill would be enforced capriciously. One can never know before the fact precisely what material is illegal when shown or disseminated to minors. The fact that one might be acquitted of a dubious charge doesn't help with the legal fees or emotional strain.

A review of more of the bill's language is helpful in understanding how broad it might apply.

"Material" means a picture, drawing, video recording, film, book, magazine, or other written or electronic depiction, description, or representation.

"Nudity" means the showing of: Uncovered, or less than opaquely covered, human genitals, pubic area, or buttocks or the nipple or any portion of the areola of the human female breast...

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:

An average adult person applying contemporary community standards to the material or performance would find that the material or performance has a predominant tendency to appeal to the prurient interest of minors; and

An average adult person applying contemporary community standards 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 [the material lacks "serious... value"]...

The first major portion of the bill pertains to store displays; the second pertains to dissemination. The bill defines a crime if one "sells, furnishes, presents, or distributes to a minor any material that is harmful to minors." The part about "dissemination" offers as an affirmative defense that the parent or guardian gave permission, or if the accused checked identification and "reasonably believed the minor was at least eighteen years of age."

So the bill is not as open-ended as some critics fear, but neither is it tightly written to prevent abusive enforcement and prosecution.

By my reading of the bill, even text-only descriptions of nudity or sexual acts can count as a crime when shown to minors. It is conceivable even that sexually explicit language from Harvey's own bill, if quoted out of context, could count as a violation. (I'll give Harvey the benefit of the doubt and consider his bill to have "serious political value.")

In the Speakout, I gave two examples that could be prosecuted under Harvey's bill to render what I consider to be absurd outcomes. First, an 18-year-old female who sends her 17-year-old boyfriend a picture of her breasts could be sent to prison for a year. Second, a teenage high school student who invites his friends over and shows them explicit videos or magazines could be sent to prison for a year. And it's a year for each offense. Ten magazines, ten years in prison (though it's somewhat ambiguous what counts as an "individual dissemination of material").

In the example, I was assuming an 18-year-old high school student who invited over 17-year-old friends. However, the bill does not prevent minors from being charged for the offense.

I'm sure the reader can think of a host of other examples that might invoke police action or prosecution, in cases where no significant harm was intended or committed. Keep in mind that statutes tend to stay on the books for a long time, they are enforced and prosecuted not by angels but by human beings, and even police action and prosecution can be harmful, never mind a criminal conviction.

But as I also suggested in the Speakout, Harvey seems to be on to an important point. If what Lt. Holly Nicholson-Kluth told me is correct, that prosecutors are reluctant to charge internet predators who perform live sex acts over the internet under obscenity statutes, then that's a good reason to draft narrow legislation that applies only to sexual predation. Indeed, I see no reason why the obscenity statutes can't then be repealed. The line between "obscenity" and legally protected pornography has always been vague. Of course, statutory rape, attempting to meet with a minor for purposes of sexual predation, and using children to make pornography are all illegal already. It is a small and sensible step to outlawing other clear forms of sexual predation.

Unfortunately, because Harvey's bill is too broad, it also therefore fails to account for some actual cases of sexual predation. Nicholson-Kluth and I discussed this point briefly. Specifically, because Harvey's bill allows dissemination of sexually explicit material if a parent or adult gives permission, that could exclude acts of sexual predation involving parents or guardians.

Standard libertarian theory accounts for why children should be treated differently under the law. Children are not recognized to have developed a full rationality. Thus, they cannot enter into contracts or get married (except in certain conditions). Generally they are tried criminally by different standards. Children are legally protected against abuse and gross neglect. As an extension of the principles of contract, a reasonable case can be made that children ought not be able to purchase certain things without parental permission. Among these things are drugs, firearms, and pornography. Indeed, if one holds that a legal minimum age should be set for the purchase of one of these products, it's difficult to argue against a minimum age for any of them.

Of course, this gets thorny right away. What is the definition of a "child?" Surely 18 is an arbitrary line. What I would prefer is to set 18 as the general standard of adulthood (which means all alcohol and firearms laws prohibiting purchases till the age of 21 are invalid), but make it fairly easy for younger minors to seek legal recognition of maturity. I know some 15-year-olds who are more mature than some 40-year-olds. If a 15-year-old wants to petition for his adult rights, and he can convince a judge or other authority he or she is mature enough, I say let the person buy alcohol, sign contracts, and whatever else. But the 15-year-old must also then be held to adult standards.

The other problem with legal prohibitions of commerce with minors is that they require identification. "Papers please" is a command that should annoy any American.

An alternative to legal prohibitions is the civil law, which requires no legislative action. (Legislators rarely are satisfied to keep their hands off of problems that can and should be handled in other ways.) Let's say your 10-year-old child buys a bottle of vodka from the local store, drinks much of it, and ends up in the hospital. I think it's obvious civil action could be brought against those who sold the alcohol to the child. Civil law plausibly could apply to the other items mentioned. But few would protest if the law required proof of age to buy pornography, narrowly defined.

It is ironic -- but not unexpected -- that Republicans, who appeal to personal responsibility when it comes to gun ownership, act as though people are incapable of self-governance when it comes to sex and drugs. During our telephone conversation, Harvey invoked unnamed "studies" to prove children are harmed by exposure to sexually explicit material. In precisely the same way, Democrats invoke factoids to rationalize statist gun laws.

During the committee hearing Harvey argued that, since most sellers of books and magazines already keep pornography away from children, there's no harm in passing a law regulating store displays. By the same rationale, since most gun owners already store their guns in a safe way, there's no harm in passing a law mandating gun storage. Republicans can be so short-sighted. It reminds me of when Doug Dean voted against lowering the purchase age of alcohol to 18 -- only to be quoted by Democrats who wanted to raise the purchase age of guns to 21. If Republicans are going to dictate storage of naked pictures, how can they argue against mandated storage of guns?

Of course, "safe storage" laws for books are bad for the same general reasons they are bad for guns. They open the door to police and prosecutorial abuse, they create misincentives that result in harm, and they address problems better solved through personal responsibility.

Most Republicans would rather rely on educational programs, such as the National Rifle Association's "Eddie Eagle," rather than pass storage legislation for guns. Republicans correctly argue that storage laws can have a "chilling effect" on the right to bear arms and encourage people not to defend themselves against criminals.

Similarly, parents should practice responsibility to keep their children away from material they deem offensive. Book-storage laws have a "chilling effect" on free speech. If residents of a community don't like a store's display, they are free to complain, start a boycott, and educate their neighbors. This "problem" is simply beyond the proper scope of legislation.

As noted in the Speakout, voluntary social pressure already has basically solved the problem. This is a reason to keep legislators away, not invite them in.

I did a little reading about movie ratings by way of comparison. That system is fascinating, and a description follows.

The basic mission of the rating system is a simple one: to offer to parents some advance information about movies so that parents can decide what movies they want their children to see or not to see. The entire rostrum of the rating program rests on the assumption of responsibility by parents. If parents don't care, or if they are languid in guiding their children's moviegoing, the rating system becomes useless. Indeed, if you are 18 or over, or if you have no children, the rating system has no meaning for you. Ratings are meant for parents, no one else.

No one is forced to submit a film to the Board for rating, but the vast majority of producers/distributors do in fact submit their films for ratings. Any producer/distributor who wants no part of any rating system is free to go to the market without any rating at all or with any description or symbol they choose as long as it is not confusingly similar to the G, PG, PG-13, R, and, NC-17. The rating symbols are federally-registered certification marks of the MPAA and may not be self-applied.

PG-13 places larger responsibilities on parents for their children's moviegoing. The voluntary rating system is not a surrogate parent, nor should it be. It cannot, and should not, insert itself in family decisions that only parents can, and should, make. Its purpose is to give prescreening advance informational warnings, so that parents can form their own judgments. PG-13 is designed to make these parental decisions easier for films between PG and R.

R:"Restricted, Under 17 Requires Accompanying Parent Or Adult Guardian." In the opinion of the Rating Board, this film definitely contains some adult material. Parents are strongly urged to find out more about this film before they allow their children to accompany them. An R-rated film may include hard language, or tough violence, or nudity within sensual scenes, or drug abuse or other elements, or a combination of some of the above, so that parents are counseled, in advance, to take this advisory rating very seriously. Parents must find out more about an R-rated movie before they allow their teenagers to view it.

NC-17:"No One 17 And Under Admitted." This rating declares that the Rating Board believes that this is a film that most parents will consider patently too adult for their youngsters under 17. No children will be admitted. NC-17 does not necessarily mean "obscene or pornographic" in the oft-accepted or legal meaning of those words. The Board does not and cannot mark films with those words. These are legal terms and for courts to decide. The reasons for the application of an NC-17 rating can be violence or sex or aberrational behavior or drug abuse or any other elements which, when present, most parents would consider too strong and therefore off-limits for viewing by their children.

Because the rating program is a self-regulatory apparatus of the film industry, it is important that no single element of the industry take on the authority of a "czar" beyond any discipline or self-restraint...

Motion picture theater owners, who co-founded the rating system in 1968, were the first group in the entertainment industry to voluntarily enforce its guidelines. NATO estimates that the majority of the theater owners in the nation observe the rating system.

In the mid 1980's, as watching movies on videocassettes at home soared in popularity, video retailers joined theater owners in embracing the voluntary guidelines of the rating system. Parents who relied on the rating system to determine which films their children viewed in theaters found the information provided by the rating classifications equally helpful in home video. To facilitate its use, ratings are displayed on both the videocassette package and the cassette itself.

The Video Software Dealers Association (VSDA), which is the major trade association for video retailers in the United States, has adopted a "Pledge to Parents" which strongly endorses the observance of the voluntary movie rating system by video retailers.

Following are a couple other paragraphs I had to cut from the Speakout.

Another problem with the bill is that it specifies a separate criminal count for each day of a violation, which could be abused to rack up dozens or even hundreds of charges for a single piece of material. Harvey said the matter should be left to the "discretion of prosecutors and judges," but responsible law curtails the potential for abuse.

The language of 1078 is intended to replace a section of the Colorado statutes that was ruled unconstitutional in 1985. Tattered Cover was involved in that legal case. The Colorado Supreme Court ruled the old language violated the free speech rights of adults and included vague exemptions. The fact that we've been fine without the statutes for nearly two decades suggests a replacement law is unnecessary.

Here's a notation in the Colorado Revised Statutes as available on the internet: "Editor's note: The Colorado Supreme Court held this entire part 5 unconstitutional because the display provision of section 18-7-502 (5) was overly broad and infringed upon free speech rights of adults and the provision of section 18-7-503 which allowed an exemption to "accredited" museums, libraries, schools, and institutions of higher education was vague. See Tattered Cover, Inc., v. Tooley, 696 P.2d 780 (Colo. 1985)."

Sensible people who care about liberty will tell both the Republicans and the Democrats to take their "safe storage" laws and shove them somewhere Harvey's bill might well forbid us from describing.

Speakout: Explicit materials bill open to abuse
By Ari Armstrong, Special to the [Rocky Mountain] News
January 19, 2004

State Rep. Ted Harvey wants to protect minors from sexually explicit material. But who's going to protect the rest of us from Harvey's irresponsible legislation?

Harvey's bill, 1078, is overbroad and open to abuses. Thus, bookstore owners, such as Joyce Meskis of The Tattered Cover, are understandably concerned about the legislation, part of which pertains to store displays.

Daniel Recht, attorney for The Tattered Cover, worries the bill is "worded in an outrageously broad manner" and potentially includes hundreds or thousands of books. The bill would hurt adults, Recht said, because "stores will be afraid they're going to be prosecuted" if they violate a vague law. Small struggling stores would face new compliance and legal costs.

The bill specifies offensive material "lacks serious literary, artistic, political, or scientific value for minors." Unfortunately, this standard is inherently subjective. One person's "serious" work is another person's garbage.

Legislation simply isn't needed regarding displays. As Recht observed, supporters of the bill "don't trust parents to appropriately look over what their children are doing." Also, generally, businesses already keep sexually explicit material away from kids.

Carol Hill owns the Book Mine in Leadville and serves on that city's council. "I don't get it," she wondered about the supporters of the display law. "Why are these people so excited?" She noted that many sexually explicit magazines ship covered and with a warning prohibiting sale to minors. There isn't a problem, Hill said, with minors coming into her shop trying to get sexy magazines. The real problem is that many children simply aren't reading.

"Walk into Virgin Records," Harvey encouraged me. He said in the movie aisles I would find "blatant triple-X-rated covers right there at eye level for any 5-year-old" to see. So my wife agreed to take a field trip. What she found doesn't match Harvey's description. All the movie covers in the adult section showed people wearing clothes.

The most explicit cover my wife saw was a woman wearing a thong. That may or may not fit the bill's definition of nudity, which includes "uncovered, or less than opaquely covered . . . buttocks." Of course, similar clothing can be seen on many television shows and in clothing catalogs. Indeed, language from Harvey's bill, such as talk of "genitals in a discernibly turgid state," is about as sexually explicit as anything visible on Virgin's shelves.

Harvey's suggestion that children are harmed merely by roaming the aisles of Virgin Records is laughable. The level and severity of exposure with respect to store displays are minimal, whereas the threat to the First Amendment from overbroad legislation is substantial. At most, a responsible law would tighten up identification requirements to preclude minors from buying pornography.

The second major part of Harvey's bill pertains to "disseminating material or exhibiting a performance that is harmful to minors." Harvey is understandably concerned that predators send pornography to minors, often through the Internet. However, Harvey again proposes too broad a remedy.

Let us say that an 18-year-old female is dating a 17-year-old male. On a whim, she sends a digital photograph of her breasts to her boyfriend in an e-mail. According to Harvey's bill, the woman commits a Class 2 misdemeanor, punishable by up to a year in prison and a $1,000 fine.

Or let's say a teenage high school student invites some of his friends over, swipes his father's explicit tapes or magazines, and shows them to his friends. Harvey's bill again imposes a prison sentence of up to a year for each offense.

Lt. Holly Nicholson-Kluth works with the Douglas County Sheriff's Department and the Internet Crimes Against Children Task Force. "We need a tool to protect children from pornography," she said. Not only do some predators try to initiate physical contac with minors - something that's already illegal - but they solicit sexual activity via Web camera. Using children in pornography already is illegal, but Nicholson-Kluth said district attorneys have been reluctant to charge Internet predators who perform live sex acts under obscenity statutes. Harvey should return to the drafting room to more narrowly address the problem of sexual predation.

Criminal defense attorney Paul Grant aptly described House Bill 1078: "It's very easy to create huge numbers of new criminals with a law like that. It's very easy to criminalize acts that really have no criminal intent. This bill is an invitation to lawsuits. It most likely will be challenged and defeated in court, and it should be."

Ari Armstrong edits The Colorado Freedom Report, "a libertarian journal of politics and culture," online at

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