Under current Kansas law it is a defense to the crime of promoting obscenity that the obscene material was, acquired by a K-12 school and was thereafter distributed or disseminated by a teacher as part of an approved course of instruction. The practical effect of this defense is that materials that would be illegal if sold at a porn shop may be legal if displayed to a kindergarten class. This is an anomalous situation that deserves correction. HB2200 would retain the current defense to promoting obscenity for post-secondary educational institutions, but would remove that defense for schools at the K-12 level.
In considering HB 2200 it is important to keep in mind that obscene material is not protected by the First Amendment. (See Roth v. United States, 354 U.S. 476). Indeed the United States Supreme Court has clearly held that a work or product may be subject to state regulation under the following 3 step test:
1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;
3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (See Miller v. California, 413 U.S. 15).
The Kansas law generally follows the Miller test, but expands it slightly by adding “educational” to the list of qualifiers under the third prong of the test. While this may be a logical extension of the Miller test it is not a necessary one, especially as it applies to the exposure of minors to obscene materials.
That having been said this bill does not delete the educational prong from the definition of obscenity. As such, materials shown to a K-12 class which have serious educational value are by definition not obscene and fall outside the scope of the criminal obscenity statute in Kansas. This bill in no way changes that fact.
What this bill does do is clearly provide that if materials shown to a K-12 class do in fact meet the criminal definition of obscenity (which would include a showing that “taking as a whole, a reasonable person would find that the material or performance lacks serious literary, educational, artistic, political or scientific value”), then the mere fact the material was used in an approved course of curriculum at the school would not be a defense in a prosecution for promoting obscenity.
Thank you for your consideration of this bill. I would be happy to answer any questions.
