BILL ANALYSIS

 

 

 

C.S.H.B. 3357

By: Schatzline

Judiciary & Civil Jurisprudence

Committee Report (Substituted)

 

 

 

BACKGROUND AND PURPOSE

 

Obscene displays, especially those targeted at children, are extremely detrimental to a child's well-being. Child pornography and other obscene displays are prevalent on the Internet, and many people think that it is imperative to create harsh punishments for those who perpetrate such acts. C.S.H.B. 3357 will hold entities who distribute harmful material to minors accountable by imposing civil liabilities on perpetrators of obscenity, including child pornography, and provide a civil remedy for those harmed by obscenity against those responsible.

 

CRIMINAL JUSTICE IMPACT

 

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

 

RULEMAKING AUTHORITY

 

It is the committee's opinion that rulemaking authority is expressly granted to the attorney general in SECTION 2 of this bill.

 

ANALYSIS

 

C.S.H.B. 3357 amends the Civil Practice and Remedies Code to make certain defendants liable for damages arising from obscenity if the defendant engages in the obscenity or knowingly or intentionally benefits from participating in an entity that engages in the obscenity.

 

C.S.H.B. 3357 makes a commercial entity liable, as provided by the bill, to a person harmed for damages arising from the distribution, transmission, or display of harmful material to a minor if, knowing the character and content of the material, the entity knowingly or intentionally benefits from participating in the distribution, transmission, or display of harmful material to a minor by facilitating, aiding, encouraging, or contributing to the distribution, transmission, or display in a manner that is readily accessible to minors or includes a minor's visual image, audio voice, or participation in any manner. A shareholder or member of a legal entity that is governed by Business Organizations Code provisions relating to corporations, limited liability companies, or professional entities that is liable under the bill's provisions is jointly and severally liable with the entity to the person harmed by the obscenity if the person demonstrates that the shareholder or member caused the entity to be used for the purpose of engaging in obscenity and that the conduct was for the direct personal benefit of the shareholder or member. A person who engages in the conduct prohibited by the bill and is found liable under the bill or under other law for any amount of damages arising from that conduct is jointly and severally liable with any other defendant for the entire amount of damages arising from that conduct.

 

C.S.H.B. 3357 establishes that it is not a defense to liability under the bill's provisions that the defendant:

·         has been acquitted or has not been prosecuted or convicted of an obscenity offense;

·         has been convicted of a different offense or a different type or class of offense for the conduct that is alleged to give rise to the liability;

·         claims ignorance or mistake of law;

·         has a belief that the requirements of the bill are unconstitutional or were unconstitutional;

·         relies on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in the violating conduct; or

·         relies on any state or federal court decision that is not binding on the court in which the action has been brought.

 

C.S.H.B. 3357 requires a court to award a claimant who prevails in an action under the bill's provisions actual damages, including damages for mental anguish even if an injury other than mental anguish is not shown, court costs, and reasonable attorney's fees. In addition to that required award, the prevailing claimant may recover exemplary damages. The cause of action created by the bill's provisions is cumulative of any other remedy provided by common law or statute, and each occurrence of obscenity that harms a person, regardless of whether the occurrence is part of a pattern of conduct, gives rise to a separate claim for civil liability.  

 

C.S.H.B. 3357 requires its provisions to be liberally construed and applied to promote its underlying purpose to protect persons from obscenity and provide adequate remedies to those who are harmed by obscenity. The bill's provisions may not be construed to do any of the following:

·         wholly or partly repeal, either expressly or by implication, any statute or part of a statute that prohibits obscenity;

·         restrict a political subdivision from regulating or prohibiting obscenity in a manner that is at least as stringent as state laws; or

·         legalize any conduct prohibited by the bill's provisions or by Penal Code provisions regarding obscenity.

 

C.S.H.B. 3357 does not apply to a bona fide news or public interest broadcast, website video, report, or event and may not be construed to affect the rights of a news-gathering organization. An Internet service provider, or its affiliates or subsidiaries, a search engine, or a cloud service provider may not be held to have violated the bill's provisions solely for providing access or connection to or from a website or other information or content on the Internet or on a facility, system, or network not under that provider's control, including transmission, downloading, intermediate storage, access software, or other services to the extent the provider or search engine is not responsible for the creation of the content that constitutes the obscenity or harmful material.

 

C.S.H.B. 3357 includes the following definitions:

·         "obscenity" means conduct that constitutes any of the obscenity-related offenses under the Penal Code;

·         "minor" is defined by reference as an individual younger than 18 years of age;

·         "harmful material" is defined by reference as material whose dominant theme taken as a whole:

o   appeals to the prurient interest of a minor, in sex, nudity, or excretion;

o   is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and

o   is utterly without redeeming social value for minors;

·         "commercial entity" includes a corporation, limited liability company, partnership, limited partnership, sole proprietorship, or other legally recognized business entity; and

·         "news-gathering organization" includes the following:

o   an employee of a newspaper, news publication, or news source, printed or on an online or mobile platform, of current news and public interest, who is acting within the course and scope of that employment and can provide documentation of that employment with the newspaper, news publication, or news source; and

o   an employee of a radio broadcast station, television broadcast station, cable television operator, or wire service who is acting within the course and scope of that employment and can provide documentation of that employment.

 

C.S.H.B. 3357 sets out an explicit statement of legislative intent regarding the severability of its provisions, mindful of Leavitt v. Jane L., 518 U.S. 137 (1996), and provides for the following:

·         severability of constitutionally valid applications of the bill from any applications that a court finds to be unconstitutional or otherwise invalid;

·         severability in the event that a reviewing court finds a substantial number of a statute's applications under the bill to be unconstitutional, judged in relation to the bill's plainly legitimate sweep;

·         a declaration that the legislature would have enacted the bill, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of the bill, irrespective of the fact that any such part or any applications were to be declared unconstitutional; and

·         severability in the event that any bill provision is found to be unconstitutionally vague.

The bill prohibits a court from declining to enforce these severability requirements on the ground that severance would rewrite the statute or involve the court in legislative or lawmaking activity. The bill specifies that a court that declines to enforce or enjoins a state official from enforcing a statutory provision does not rewrite a statute, as the statute continues to contain the same words as before the court's decision, and that a judicial injunction or declaration of unconstitutionality:

·         is nothing more than an edict prohibiting enforcement that may subsequently be vacated by a later court if that court has a different understanding of the requirements of the United States or Texas Constitution;

·         is not a formal amendment of the language in a statute; and

·         no more rewrites a statute than a decision by the executive not to enforce a duly enacted statute in a limited and defined set of circumstances.

 

C.S.H.B. 3357 requires the attorney general, if any federal or state court declares unconstitutional or enjoins the enforcement of a bill provision and fails to enforce the bill's severability requirements for any reason whatsoever to adopt rules that enforce the bill's requirements to the maximum possible extent while avoiding the constitutional problems or other problems identified by the court and to issue notice of those rules, not later than the 30th day after the date of the court ruling. If the attorney general fails to adopt the rules and issue the notice, a person may petition for a writ of mandamus requiring the attorney general to adopt the rules and issue notice.

 

C.S.H.B. 3357 applies only to a cause of action that accrues on or after the bill's effective date.

 

EFFECTIVE DATE

 

September 1, 2023.

 

COMPARISON OF INTRODUCED AND SUBSTITUTE

 

While C.S.H.B. 3357 may differ from the introduced in minor or nonsubstantive ways, the following summarizes the substantial differences between the introduced and committee substitute versions of the bill.

 

Both the introduced and the substitute make certain defendants liable for damages arising from obscenity if the defendant engages in the obscenity or knowingly or intentionally benefits from an entity that engages in the obscenity. While the introduced made information content providers and interactive computer services liable under the bill's provisions, the substitute instead imposes such liability on commercial entities, which include a corporation, limited liability company, partnership, limited partnership, sole proprietorship, or other legally recognized business entity.

 

The substitute includes provisions absent from the introduced that do the following:

·         exempt a bona fide news or public interest broadcast, website video, report, or event from the bill's provisions and establish that such provisions may not be construed to affect the rights of a news-gathering organization, as defined by the substitute; and

·         establish that an Internet service provider, or its affiliates or subsidiaries, a search engine, or a cloud service provider may not be held to have violated the bill's provisions solely for providing access or connection to or from a website or other information or content on the internet or on a facility, system, or network not under that provider's control, including transmission, downloading, intermediate storage, access software, or other services to the extent the provider or search engine is not responsible for the creation of the content that constitutes the obscenity or harmful material.