MY BILL IS IN THE MAIL
Because YOU Demanded It
.....a quick and dirty look at the Michigan law
causing all the commotion
First impressions: man, this isn't at all Constitutional. The general rule is that a state has the inherent power to keep obscene materials out of the hands of kids, in much the same way that a state can, if it wants, keep obscene material out of the hands of adults. And the Supreme Court has held that there are materials which are not obscene for adults, but are obscene for kids; again, a state has the power to regulate access to such materials.
But not all offensive material is obscene. In order to determine that something is obscene, a court is Constitutionally required to make certain findings. This is true for kids as well as for adults; kids get their own version of the Miller
test (which is not the same thing as the Little Miller Act, incidentally). Thus, the state can regulate the access of minors to materials which, and here I paraphrase: (a) depict sexual content prohibited by state law, (b) would be viewed by the average adult person, applying community standards, as unsuitable for kids, and (c) which lack serious literary, artistic, political, or scientific value to a reasonable seventeen year old. In other words, the Bible isn't obscene. Nor is Watchmen, or From Hell, or that recent Avengers with the weird size fetish angle.
Michigan jumps the rails, though, in that the new law just ignores this test and the bulk of the Supreme Court precedent that go along with it. It criminalizes the display of any materials that include depictions of sex or nudity; and it does so without regard to the artistic, literary, political, or scientific value of the materials or community standards. Michigan should know better. It's been down this road before. In People v. Neumayer
, 275 N.W.2d 230 (Mich. 1979), the Michigan Supreme Court struck down the state's obscenity law precisely because it did not conform to Miller
: "a cursory comparison of the Michigan criminal obscenity statutes with the detailed requirements set forth in Miller reveals that the statutes lack the specificity required of a statute which seeks to regulate speech and thus unquestionably fail to pass Federal constitutional muster." This is not the sort of precedent you want to arguing against if you're the poor attorney who has to defend this law.
Given this, I cannot imagine that this law will survive any sort of review; it appears to me to be facially defective. I am therefore am not horribly concerned about it, except insofar as it shows that dumb people still exist and serves to drain the litigation coffers of the CBLDF and/or the ACLU. I think it's exceedingly likely that this law will either be redrawn to cover only obscene materials, or be read judicially to cover only obscene materials. Redrawn or read in this way, it becomes very very similar to laws already on the books in many states: see, for example, Chapter 847 of the Florida Statutes, banning the display of obscene material to children. And comic book stores in Florida, and in many other states, carry on business as usual, albeit perhaps stocking less tentacle porn than they used to. Note that all I'm saying is that obscenity laws, properly drafted, are legal; and something can be legal and still odious and dumb.
Second impressions: man, given how obviously unconstitutional this is it has to be that this is a way for Michigan politicians to score points. It is dirtly little secret of politics that sometimes, politicians do things they know will be smacked down by Courts or other governing bodies just so they can appear concerned, or to create an issue; re-elect me and I'll fight to get rid of the damn judges that won't allow us to protect your kids. Seen this way, Michigan comic stores might still want to watch what they order. An obscentiy law is still on the books, and this might herald increased enforcement of an existing and presumably (per the patch applied in Neumayer
) Constitutional law. If politicians think they can score points keeping the kids from looking at nude folks, odds are some prosecutor might also.
As always, this is intended only as a lay opinion, and is not intended as soliciting or offering legal advice to any person or entity. For a better discussion of general First Amendment issues by someone more qualified than I, go see a Volokh
. Full cites are available if people really want them.