Senate Bill 2346: Public School and Public Library Content Restrictions

March 9, 2023March 30, 2023 Bill Tracker

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On March 28, the Senate and the House each voted to adopt the conference report for SB 2346. The conference report removes entirely the provision regarding sweeping restrictions on digital content offered by public schools and public libraries. These restrictions are now addressed solely in House Bill 1315. SB 2346 now only addresses the requirements for certain websites to verify the age of users. The bill is now awaiting the Governor’s signature.

Explanation of the Bill

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Senate Bill 2346 would require any entity publishing or distributing “material harmful to minors” on the internet to verify the age of any individual accessing the content, and to restrict this content from any individual under the age of 18. Entities which violate this measure would be held liable for “damages resulting from a minor’s accessing the material.” This measure is ostensibly designed to restrict the distribution of pornography to minors—distribution which is already strictly prohibited under federal law. However, the definition of “material harmful to minors” under SB 2346 is excessively broad and includes:

• “Any material that the average person, applying contemporary community standards would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest…”
• “Any of the following material that exploits, is devoted to, or principally consists of actual, simulated, or animated display or depiction of any of the following… pubic hair, anus, vulva, genitals, or nipple of the female breast… touching, caressing, or fondling of nipples, breasts, buttocks, anuses, or genitals… sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, excretory functions, exhibitions, or any other sexual act.”
• Material that “lacks serious literary, artistic, political, or scientific value for minors.”

While aspects of the definition of “material harmful to minors” in SB 2346 appear to mirror the U.S. Supreme Court’s three-pronged Miller test for determining whether speech or expression is “obscene” (and therefore not protected by the First Amendment), the bill does not clearly state that materials must satisfy each definition simultaneously to be considered “harmful to minors”—a critical requirement of the Miller test. The possibility that individual aspects of the “material harmful to minors” definition may be sufficient to meet this definition dramatically expands the type of websites that could fall under the purview of this legislation.

The intent as well as the impact of this language is therefore somewhat unclear. SB 2346 cites the dangers of pornography for minors, but distribution of pornography to minors already violates federal law. It appears that the bill would primarily serve to require age verification for a larger swath of content than pornography. Still, it is difficult to discern the impact, as the definition of “material harmful to minors” is broad but also quite vague. For example, many people may reasonably agree that much of social media lacks “serious literary, artistic, political, or scientific value for minors.” Would SB 2346 therefore bar minors from accessing YouTube or TikTok? This does appear to be the intent of the legislation, but it could remain a possibility under this language.