HOUSE AMENDED
PRIOR PRINTER'S NOS. 264, 1243, 1745, PRINTER'S NO. 1945
1913
No. 262 Session of 1999
INTRODUCED BY HART, BELL, SALVATORE, WENGER, MOWERY, WHITE,
WAUGH, TOMLINSON, SLOCUM, THOMPSON, DENT, GERLACH, ROBBINS,
CORMAN, RHOADES, MUSTO, KASUNIC, COSTA AND BOSCOLA,
FEBRUARY 1, 1999
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
MAY 10, 2000
AN ACT
1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania
2 Consolidated Statutes, further providing for obscene and <--
3 other sexual materials and performances. EXPLICIT SEXUAL <--
4 MATERIALS.
5 The General Assembly finds and declares as follows:
6 (1) The Internet is an increasingly valuable medium for
7 communication and the dissemination and collection of
8 information.
9 (2) The children of this Commonwealth utilize the
10 Internet for entertainment, education and commerce.
11 (3) Many children in this Commonwealth have access to
12 electronic mail accounts through their parents' accounts,
13 shared accounts or their own personal accounts.
14 (4) Increasingly advertisers use the Internet to market
15 obscene EXPLICIT SEXUAL materials to millions of users of the <--
16 Internet.
1 (5) One of the frequently used vehicles for the
2 marketing of obscene EXPLICIT SEXUAL materials via the <--
3 Internet is unsolicited electronic mail messages.
4 (6) These unsolicited obscene EXPLICIT SEXUAL <--
5 advertisements are sent to computers in Commonwealth
6 households allowing children to view or have access to
7 pornographic materials.
8 (7) Although there are an increasing number of Internet
9 filtering software titles that parents can use to block
10 access to obscene World Wide Web sites, these filtering
11 software titles are ineffective against obscene EXPLICIT <--
12 SEXUAL material that is sent via electronic mail.
13 (8) There is no universal method of identifying
14 electronic mail messages that market obscene EXPLICIT SEXUAL <--
15 materials.
16 (9) Despite the best efforts of parents to protect their
17 children from obscene EXPLICIT SEXUAL material via electronic <--
18 mail messages, they are unable to do so because there is no
19 method by which they can separate and filter out
20 inappropriate messages from appropriate messages.
21 (10) The Commonwealth has a compelling interest in
22 protecting children from obscenity EXPLICIT SEXUAL MATERIAL. <--
23 (11) In doing so, government must enact a narrowly
24 tailored remedy to avoid interfering with the growth or
25 accessibility of this important medium and with the rights of
26 adult users of the Internet under the first amendment to the
27 Constitution of the United States and section 7 of Article I
28 of the Constitution of Pennsylvania.
29 (12) This act empowers parents to decide what type of
30 messages are inappropriate for their children and effectively
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1 block those messages from their children's electronic mail
2 accounts.
3 (13) This act does not restrict or prevent the senders <--
4 SENDING of unsolicited obscene electronic mail messages from <--
5 sending those messages EXPLICIT SEXUAL ELECTRONIC <--
6 ADVERTISEMENTS to any and all prospective recipients AS LONG <--
7 AS AN APPROPRIATE WARNING ACCOMPANIES SUCH ADVERTISEMENTS.
8 The General Assembly of the Commonwealth of Pennsylvania
9 hereby enacts as follows:
10 Section 1. Section 5903(a) and (b), (B) AND (H)(1) of Title <--
11 18 of the Pennsylvania Consolidated Statutes are amended and the
12 section is amended by adding subsections to read:
13 § 5903. Obscene and other sexual materials and performances.
14 (a) Offenses defined.--No person, knowing the obscene
15 character of the materials or performances involved, shall:
16 (1) display or cause or permit the display of any
17 explicit sexual materials as defined in subsection (c) in or
18 on any window, showcase, newsstand, display rack, billboard,
19 display board, viewing screen, motion picture screen, marquee
20 or similar place in such manner that the display is visible
21 from any public street, highway, sidewalk, transportation
22 facility or other public thoroughfare, or in any business or
23 commercial establishment where minors, as a part of the
24 general public or otherwise, are or will probably be exposed
25 to view all or any part of such materials;
26 (2) sell, lend, distribute, TRANSMIT, exhibit, give away <--
27 or show any obscene materials to any person 18 years of age
28 or older or offer to sell, lend, distribute, TRANSMIT, <--
29 exhibit or give away or show, or have in his possession with
30 intent to sell, lend, distribute, TRANSMIT, exhibit or give <--
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1 away or show any obscene materials to any person 18 years of
2 age or older, or knowingly advertise any obscene materials in
3 any manner;
4 (3) design, copy, draw, photograph, print, utter,
5 publish or in any manner manufacture or prepare any obscene
6 materials;
7 (4) write, print, publish, utter or cause to be written,
8 printed, published or uttered any advertisement or notice of
9 any kind giving information, directly or indirectly, stating
10 or purporting to state where, how, from whom, or by what
11 means any obscene materials can be purchased, obtained or
12 had;
13 (5) produce, present or direct any obscene performance
14 or participate in a portion thereof that is obscene or that
15 contributes to its obscenity;
16 (6) hire, employ, use or permit any minor child to do or
17 assist in doing any act or thing mentioned in this
18 subsection;
19 (7) knowingly take or deliver in any manner any obscene
20 material into a State correctional institution, county
21 prison, regional prison facility or any other type of
22 correctional facility;
23 (8) possess any obscene material while such person is an
24 inmate of any State correctional institution, county prison,
25 regional prison facility or any other type of correctional
26 facility; [or] <--
27 (9) knowingly permit any obscene material to enter any
28 State correctional institution, county prison, regional
29 prison facility or any other type of correctional facility if
30 such person is a prison guard or other employee of any
19990S0262B1945 - 4 -
1 correctional facility described in this paragraph[.]; or <--
2 (10) transmit or cause to be transmitted via an
3 electronic communication system to one or more persons within
4 this Commonwealth an unsolicited advertisement that contains
5 obscene material or performances or a uniform resource
6 locator to a World Wide Web site that contains obscene
7 material or performances without including in the electronic
8 communication the term "ADV-ADULT" at the beginning of the
9 subject line of the electronic communication.
10 (A.1) DISSEMINATION OF EXPLICIT SEXUAL MATERIAL VIA AN <--
11 ELECTRONIC COMMUNICATION.--NO PERSON, KNOWING THE CONTENT OF THE
12 ADVERTISEMENT TO BE EXPLICIT SEXUAL MATERIALS, AS DEFINED IN
13 SUBSECTION (C)(1) AND (C)(2), SHALL TRANSMIT OR CAUSE TO BE
14 TRANSMITTED AN UNSOLICITED ADVERTISEMENT IN AN ELECTRONIC
15 COMMUNICATION AS DEFINED IN SECTION 5702 (RELATING TO
16 DEFINITIONS) TO ONE OR MORE PERSONS WITHIN THIS COMMONWEALTH
17 THAT CONTAINS EXPLICIT SEXUAL MATERIALS AS DEFINED IN
18 SUBSECTIONS (C)(1) AND (C)(2) WITHOUT INCLUDING IN THE
19 ADVERTISEMENT THE TERM "ADV-ADULT" AT THE BEGINNING OF THE
20 SUBJECT LINE OF THE ADVERTISEMENT.
21 (b) Definitions.--As used in this section the following
22 words and phrases shall have the meanings given to them in this
23 subsection:
24 "Community." For the purpose of applying the "contemporary
25 community standards" in this section, community means the State.
26 "Knowing." As used in [subsection (a)] SUBSECTIONS (A) AND <--
27 (A.1), knowing means having general knowledge of, or reason to
28 know or a belief or ground for belief which warrants further
29 inspection or inquiry of, the character and content of any
30 material or performance described therein which is reasonably
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1 susceptible of examination by the defendant.
2 "Material." Any literature, including any book, magazine,
3 pamphlet, newspaper, storypaper, bumper sticker, comic book or
4 writing; any figure, visual representation, or image, including
5 any drawing, photograph, picture, videotape or motion picture.
6 "Nude." Means showing the human male or female genitals,
7 pubic area or buttocks with less than a fully opaque covering,
8 or showing the female breast with less than a fully opaque
9 covering of any portion thereof below the top of the nipple.
10 "Obscene." Any material or performance, if:
11 (1) the average person applying contemporary community
12 standards would find that the subject matter taken as a whole
13 appeals to the prurient interest;
14 (2) the subject matter depicts or describes in a
15 patently offensive way, sexual conduct of a type described in
16 this section; and
17 (3) the subject matter, taken as a whole, lacks serious
18 literary, artistic, political, educational or scientific
19 value.
20 "Performance." Means any play, dance or other live
21 exhibition performed before an audience.
22 "Sadomasochistic abuse." Means, in a sexual context,
23 flagellation or torture by or upon a person who is nude or clad
24 in undergarments, a mask or in a bizarre costume or the
25 condition of being fettered, bound or otherwise physically
26 restrained on the part of one who is nude or so clothed.
27 "Sexual conduct." Patently offensive representations or
28 descriptions of ultimate sexual acts, normal or perverted,
29 actual or simulated, including sexual intercourse, anal or oral
30 sodomy and sexual bestiality; and patently offensive
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1 representations or descriptions of masturbation, excretory
2 functions, sadomasochistic abuse and lewd exhibition of the
3 genitals.
4 "Subject line." The area of an electronic communication that
5 contains a summary description of the content of the message.
6 "Transportation facility." Any conveyance, premises or place
7 used for or in connection with public passenger transportation,
8 whether by air, rail, motor vehicle or any other method,
9 including aircraft, watercraft, railroad cars, buses, and air,
10 boat, railroad and bus terminals and stations.
11 "Uniform resource locator." An Internet address for a <--
12 resource, object or information that is accessible via the
13 Internet.
14 "World Wide Web site." A web page or collection of web pages
15 that is organized around a central theme or purpose. Each web
16 page is a single computer file that may contain text, images and
17 other multimedia materials to present information that can be
18 viewed via the World Wide Web.
19 * * *
20 (H) CRIMINAL PROSECUTION.-- <--
21 (1) ANY PERSON WHO VIOLATES SUBSECTION (A), (A.1) OR (F)
22 IS GUILTY OF A MISDEMEANOR OF THE FIRST DEGREE. VIOLATION OF
23 SUBSECTION (A) IS A FELONY OF THE THIRD DEGREE IF THE
24 OFFENDER HAS PREVIOUSLY BEEN CONVICTED OF A VIOLATION OF
25 SUBSECTION (A) OR IF THE MATERIAL WAS SOLD, DISTRIBUTED,
26 PREPARED OR PUBLISHED FOR THE PURPOSE OF RESALE.
27 * * *
28 (l) Penalty for attempt to evade prosecution.--Any person
29 who violates subsection (a)(10) (A.1) and attempts to avoid <--
30 prosecution by knowingly including false or misleading
19990S0262B1945 - 7 -
1 information in the return address portion of the electronic mail <--
2 message COMMUNICATIONS such that the recipient would be unable <--
3 to send a reply message to the original, authentic sender shall,
4 in addition to any other penalty imposed, upon conviction, be
5 sentenced to pay a fine of not less than $100 nor more than $500
6 per message or to imprisonment for not more than 90 days, or
7 both, for a first offense and a fine of not less than $500 nor
8 more than $1,000 or to imprisonment for not more than one year,
9 or both, for a second OR SUBSEQUENT offense. <--
10 (m) Concurrent jurisdiction to prosecute.--The Attorney
11 General shall have the concurrent prosecutorial jurisdiction
12 with the district attorney for cases arising under subsection
13 (a)(10) (A.1) and may refer to the district attorney, with the <--
14 district attorney's consent, any violation or alleged violation
15 of subsection (a)(10) (A.1) which may come to the Attorney <--
16 General's attention.
17 Section 2. This act shall take effect in 60 days.
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