Legal Niches

Passed By Louisiana Senate, SB 152 Targets Sexually-Explicit Content

By gamepolitics

By a 35-0 vote yesteday, the Louisiana Senate passed SB 152, a bill which would make a pattern of distributing sexually explicit material to children a deceptive trade practice under state law.

GamePolitics readers may recall that in its original form, SB 152 was drafted by disbarred Miami attorney Jack Thompson as a back-door means of enforcing ESRB content ratings. The original SB 152 mirrored Thompson's Utah bill, which was vetoed by Utah Gov. Jon Huntsman (R) in March. However, bill sponsor Sen. A.G. Crowe (R, at left) subsequently gutted Thompson's focus on age ratings from the bill, amending it instead to its new focus on the distribution of sexually explicit material to minors. It should be noted that distributing such material to minors is already an offense under Louisiana's criminal statutes.

Unlike the Utah bill, SB 152 doesn't make reference to video games, advertising, age ratings or any specific product, for that matter. However, Sen. Crowe did mention video games as an example during yesterday's session:

This body has over the years passed numerous laws to protect our children... And with the growth of...  the market of materials that would be considered by most of us here objectionable as it relates to obscenity such as that is found... in video games either rented or purchased, could fall again into the hands of some of our children. So it is a step in the direction of moving, passing legislation that would allow for, again, protecting our children from this type of thing...

Oddly enough, SB 152 specifically excludes the Internet from its provisions. These days the online world would seem the most likely source for a child to stumble upon sexually explicit material. 

The nature of sexually-explicit conduct defined in the bill would seem to exclude any ESRB-rated video game published to date. It seems clear that a game meeting the standard defined in the bill would have already been rated Adults Only (AO) by the ESRB. Curiously, the bill does not relate its provision for sexually-explicit conduct to the legal definition of obscenity. Should the bill eventually be signed into law, this could prove to be a fatal flaw from a constitutional sense.

Now that it has been passed by the Senate, the next stop for SB 152 is the Louisiana House of Representatives.

GamePolitics readers can watch yesterday's debate on SB 152 by clicking here. Scroll down to "Chamber" for June 10th. The SB 152 segment begins at 4:01:39.

UPDATE: A knowledgeable video game industry source criticized SB 152 in comments to GamePolitics:

The bill as passed by the Senate is clearly unconstitutional. It would penalize the sale of sexually oriented material to minors, but does not require that the material be legally obscene for minors, referred to in Louisiana as 'harmful to minors,' or 'obscene,' as U.S. Supreme Court precedents mandate. This was the same flaw that doomed the Illinois 'sexually explicit video games' law.
 
While it might seem that mainstream retailers have little to fear from the amended bill, as they don't carry pornography, the fact that a single depiction in an otherwise unobjectionable video game, DVD, or other material could open a retailer to liability is of grave concern.

Full post as published by GamePolitics.com on June 11, 2009 (boomark / email).