Conference Committee debates whether civil suit for obscenity should require prior criminal conviction

A conference committee convened to reconcile Senate Bill 2041 and House Bill 2159 heard competing views on whether a private civil cause of action for distributing obscene material should require a prior criminal conviction.

Elizabeth, legal adviser to the Senate Judiciary Committee, told members the House-passed version would allow a private civil action for violations relating to obscene material, while the Senate amendment requires a criminal conviction under the statute before a civil claim could be brought. "Putting [a requirement of conviction] would give more certainty to people that they wouldn't be subject to lawsuits for something that wasn't actually obscene," Elizabeth said.

Representative Barrett, a practicing attorney, said he feared the Senate approach would leave parents and guardians "having to sit back and wait for the criminal process to take place," pointing out that prosecutions under the obscenity statute have been rare and that some district attorneys may not pursue such cases. Barrett argued the House version would "put the power back into the citizenry" to seek remedies when local prosecutors do not act.

Members asked several technical and procedural questions. Elizabeth summarized the statutory framework cited in the record: violations are described in section 3917-902 (knowingly producing, importing, distributing, exhibiting, offering to distribute, or possessing with intent to distribute obscene matter) and the definition of "obscene" refers to the language in section 3917-901 (the Miller-style test: prurient interest, patently offensive, and lacking serious literary, artistic, political or scientific value). She also said that under general tort law a statute of limitations for many torts is one year and that, "if the statute required a conviction, then the action would not arise and the statute of limitations would not begin until the conviction was entered," whereas a violation-only claim would accrue at the time of the violation.

Committee members probed practical effects. Representative Todd asked how long criminal proceedings might take in cases of online transmission; Elizabeth said investigations and prosecutions can take months or years but noted there is a separate statutory provision allowing a district attorney to seek an injunction to have material removed — this bill, she said, "generally just is gonna be about damages and bringing that civil asset to recover damages." Representative Dougherty asked whether a plea to a different section would qualify for the civil remedy; Elizabeth said the Senate amendment requires a conviction under 3917-902(a)(1), so a plea to a different section would not suffice.

The chair and members also discussed remedies and sanctions. Elizabeth stated a violation is a class A misdemeanor and said the record included references to corporate fines and escalating felony treatment for repeat convictions; the exact corporate fine amount in the transcript was unclear. Representative Kepner pressed for specifics on penalties and the chair noted statutory gradations for repeat offenses.

After extended discussion about balancing the risk of frivolous suits with citizens' ability to seek redress, Representative Todd moved that the committee adopt the House version; a second was recorded, but no formal recorded roll-call vote appears in the transcript. The committee recessed briefly and later the chair said the group would adjourn and either reconvene or appoint another committee; seeing no objections, the chair adjourned the conference committee. The transcript records no final resolution on whether the civil cause of action will ultimately require a prior conviction.

Next steps: the committee left the matter open — members proposed reconvening or appointing another committee to resolve the difference between conviction-first and violation-first language.