The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Criminal Justice
BILL: SB 1692
INTRODUCER: Senator McClain
SUBJECT: Material that is Harmful to Minors
DATE: March 17, 2025
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Wyant Stokes CJ Pre-meeting
2. ED
3. RC
I. Summary:
SB 1692 amends and reenacts several sections of law pertaining to material that is harmful to
minors. The bill amends s. 847.001, F.S. to remove one of the requirements that material must
meet to be considered harmful to minors, if the material is in an educational setting.
The bill amends s. 1006.28, F.S., to revise what materials a parent or resident may object to. A
parent or resident may object to any material used in a classroom, made available in a school or
classroom library, or included in a reading list that contains content which depicts or describes
sexual conduct, unless such material is specifically authorized as part of a health education
course, comprehensive health education, or approved through the State Board of Education for
specific educational purposes. The bill provides such materials must be removed within 5 school
days upon receipt of an objection by a parent or resident of the county and must remain
unavailable throughout the objection review process. The school board may not consider
potential literary, artistic, political, or scientific value as a basis for retaining the material.
The State Board of Education (SBE) is required to monitor district compliance and notify a
district of any noncompliance. Additionally, the SBE may withhold certain funds until the school
district complies.
The bill takes effect on July 1, 2025.
REVISED: BILL: SB 1692 Page 2
II. Present Situation:
Freedom of Speech and the Protection of Minors
Background
Freedom of speech is guaranteed to citizens in the United States Constitution and the State
Constitution.
1
As a foundational principle, this prohibits the government from dictating what
people “see or read or speak or hear.”
2
However, there are limits to the freedom of speech; it is
not absolute. Categories of speech that do not enjoy complete protection include defamation,
incitement, obscenity, and pornography involving real children.
3
Courts have held, as a bedrock principle of the First Amendment, that a government may not
prohibit or suppress the expression of an idea simply because an audience finds the idea
offensive or disagreeable.
4
When evaluating what constitutes the free speech rights of adults, the
U.S. Supreme Court held, “[W]e have made it perfectly clear that ‘[s]exual expression which is
indecent but not obscene is protected by the First Amendment.’”
5
Stated slightly differently, this
means that some forms of pornography are protected under the Constitution, but obscenity is not.
The Miller Test
In 1973, the U.S. Supreme Court developed a three-prong test in Miller v. California,
6
to define
obscene speech. According to the Miller test, speech is determined to be obscene if:
• The average person, applying contemporary community standards would find that the work,
taken as a whole, appeals to the prurient interest;
• The work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and
• The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
7
The Miller test is incorporated into the definition of what is “harmful to minors” in s. 847.001(7),
F.S., and “obscenity” in s. 847.001(12), F.S.
Further, courts have found that the state has a “‘compelling interest in protecting the physical and
psychological well-being of minors’ which ‘extends to shielding minors from the influence of
literature that is not obscene by adult standards.’ In doing so, however, the means must be
narrowly tailored to achieve that end so as not to unnecessarily deny adults access to material
which is constitutionally protected indecent material. No similar tailoring is required when the
material is obscene material, which is not protected by the First Amendment.”
8
1
The United States Constitution states, “Congress shall make no law … abridging the freedom of speech.”
U.S. CONST. amend. I. The State Constitution similarly states “No law shall be passed to restrain or abridge the liberty of
speech or of the press.” Fla. Const. art. I, s. 4.
2
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245 (2002).
3
Id.
4
Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd, 502 U.S. 105, 118 (1991).
5
Ashcroft, 245, quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).
6
Miller v. California, 413 U.S. 15 (1973).
7
Id.at 24.
8
Simmons v. State, 944 So. 2d 317 (Fla. 2006). See also Ashcroft v. Free Speech Coal., 535 U.S. 234, 244-45 (2002). BILL: SB 1692 Page 3
Obscenity Involving Minors
Federal law prohibits obscenity involving minors, and those who violate the law often face
harsher penalties than if the offense involved adults only.
9
The law prohibits any individual from
knowingly transferring or attempting to transfer an obscene material using any means to a minor
under 16 years of age.
10
It is also prohibited for any person to knowingly produce, distribute,
receive, or possess with intent to transfer or distribute material that appears to depict minors
engaged in sexually explicit conduct and is deemed obscene.
11
The test for determining whether matter involving minors is obscene is a slightly lower threshold
than the Miller test. Material involving minors can be considered obscene if:
• It depicts an image that is, or appears to be a minor engaged in graphic bestiality, sadistic or
masochistic abuse, or sexual intercourse; and
• The image lacks serious literary, artistic, political, or scientific value.
12
The Court tends to grant greater protections to minors, routinely upholding state statutes that
penalize those who possess or disseminate obscene material relating to minors. In New York v.
Ferber, the defendant was convicted for distributing material that depicted a sexual performance
by a minor under the age of 16 in violation of a state law that prohibited persons from knowingly
promoting material that depicted such a performance.
13
In Ferber, the Court held that the statute
at issue did not violate the First Amendment, explaining that the states have a compelling
interest, and thus are granted more leeway, in regulating pornographic depictions of children.
14
The Court reasoned that such material bears so heavily on the welfare of children engaged in its
production that a balance of compelling interests are struck and, therefore, these materials are not
afforded the protections of the First Amendment.
15
Florida Transmission of Material Harmful to Minors
Section 847.0138, F.S., provides that:
• Any person who knew or believed that he or she was transmitting an image, information, or
data that is harmful to minors to a specific individual known by the defendant to be a minor
commits a third degree felony.
16
• Any person in any jurisdiction other than this state who knew or believed that he or she was
transmitting an image, information, or data that is harmful to minors, to a specific individual
known by the defendant to be a minor commits a third degree felony.
17,18
9
The United States Department of Justice, Citizen’s Guide to U.S. Federal Law on Obscenity, available at
https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-obscenity (last visited March 24, 2021).
10
18 U.S.C.A. s. 1470 (1998).
11
18 U.S.C.A. s. 1466A. (2003).
12
Id.
13
New York v. Ferber, 458 U.S. 747 (1982).
14
Ferber, 458 U.S. at 756.
15
Id. at 747-48.
16
Section 847.0138(2), F.S.
17
Section 847.0138(3), F.S.
18
A third degree felony is generally punishable by not more than 5 years in state prison and a fine not exceeding $5,000.
Sections 775.082 and 775.083, F.S. BILL: SB 1692 Page 4
Section 847.001(7), F.S., defines “harmful to minors” as any reproduction, imitation,
characterization, description, exhibition, presentation, or representation, of whatever kind or
form, depicting nudity, sexual conduct, or sexual excitement
19
when it:
• Predominantly appeals to a prurient, shameful, or morbid interest;
• Is patently offensive to prevailing standards in the adult community as a whole with respect
to what is suitable material or conduct for minors; and
• Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.
K-12 Student and Parent Rights
Parents of public school students are required by law to receive accurate and timely information
regarding their child’s academic progress and must be informed of ways they can help their child
succeed in school.
20
K-12 students and their parents are afforded numerous statutory rights
pertaining to student education, including reproductive health and disease education.
21
Florida law requires district school boards to provide comprehensive health education that
among other issues addresses community health, family life (including awareness of the benefits
of sexual abstinence as the expected standard and the consequences of teenage pregnancy),
personal health, and the prevention and control of disease. One right a parent of a public school
student has is to make a written request to the school principal to exempt his or her student from
reproductive health and disease instruction, including instruction relating to HIV/AIDS. If such a
request is made the student must be exempt from such instruction and may not be penalized.
22
Health education is included in the required instruction to ensure that students meet Florida State
Board of Education (SBE) standards. Course curriculum refers to the lessons and academic
content taught in a school or specific course. It may include but is not limited to a course
syllabus and standards, instructional materials, or other resources an instructor may use in the
class. Standards and instructional materials are subject to specific selection, adoption, and review
processes.
23
Instructional Materials
Each district school board has the constitutional duty and responsibility to select and provide
adequate instructional materials to each student for core courses in mathematics, language arts,
science, social studies, reading, and literature for kindergarten through grade 12. School districts
may purchase instructional materials from a list of state-reviewed and adopted instructional
materials or establish their own review and adoption program. District school boards receive
state funding for instructional materials through the instructional materials allocation.
Each district school board is responsible for the content of all instructional materials and any
other materials used in the classroom, made available in a school library, or included on a
19
Section 847.001(20), F.S., defines “sexual excitement” as the condition of the human male or female genitals when in a
state of sexual stimulation or arousal.
20
Section 1002.20, F.S.
21
Id.
22
Section 1003.42(5), F.S.
23
Florida Department of Education, Healthy Schools, Comprehensive Health Education, available at:
https://www.fldoe.org/schools/healthy-schools/comprehensive-health-edu.stml (last visited March 13, 2025). BILL: SB 1692 Page 5
reading list. Each district school board must maintain on its website a current list of instructional
materials, purchased by the district, separated by grade level. Florida law establishes that the
parent of a public school student has the right to receive effective communication from the
school principal about the manner in which instructional materials are used to implement
curricular objectives.
24
District school boards are required to adopt a policy for objections by a parent or resident of the
county to the use of a specific instructional material.
25
The policy must clearly describe a
process, in which the objector has the opportunity to provide specific evidence to the district
school board, and provide for resolution. The process must provide the parent or resident the
opportunity to proffer evidence to the district school board that:
• An instructional material does not meet the criteria of s. 1006.31(2), F.S.,
26
or s.
1006.40(3)(c), F.S.,
27
if it was selected for use in a course or otherwise made available to
students in the school district but was not subject to the public notice, review, comment, and
hearing procedures under s. 1006.283(2)(b), F.S.
• Any material used in a classroom, made available in a school or classroom library, or
included in a reading list contains content which:
o Is pornographic or prohibited under s. 847.012, F.S.;
o Depicts or describes sexual conduct,
28
unless such material is for a course relating to
health education and the instruction in acquired immune deficiency syndrome (AIDS),
29
the prevention of child sexual abuse, exploitation, and human trafficking,
30
the awareness
of the benefits of sexual abstinence as the expected standard and the consequences of
teenage pregnancy for grades 6 through 12,
31
or is identified by State Board of Education
rule;
o Is not suited to student needs and their ability to comprehend the material presented; or,
o Is inappropriate for the grade level and age group for which the material is used.
III. Effect of Proposed Changes:
The bill amends and reenacts several sections of law pertaining to material that is harmful to
minors.
24
Section 1006.28(4)(a), F.S.
25
Section 1006.28(2)(a)2., F.S.
26
Section 1006.31(2), F.S., provides, along with additional requirements, instructional materials recommended by a reviewer
must be, accurate, objective, balanced, noninflammatory, current, free of pornography and prohibited material, and suited to
student needs and their ability to comprehend the material presented.
27
Section 1006.40(3)(c), F.S. requires any instructional materials purchased must be free of pornography or prohibited
material, suited to student needs and their ability to comprehend the material presented, and appropriate for the grade level
and age group for which the materials are used or made available.
28
“Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation,
or sadomasochistic abuse; actual or simulated lewd exhibition of the genitals; actual physical contact with a person’s clothed
or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to around or gratify the sexual
desire of either party; or any act or conduct which constitutes sexual battery or simulated that sexual battery is being or will
be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct”. Section
847.001(19), F.S.
29
Section 1003.46, F.S.
30
Section 1003.42(2)(o)1.g.,F.S.
31
Section 1003.42(2)(o)3., F.S. BILL: SB 1692 Page 6
“Harmful to minors” is defined as any reproduction, imitation, characterization, description,
exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual
conduct, or sexual excitement when it:
• Predominantly appeals to a prurient, shameful, or morbid interest;
• Is patently offensive to prevailing standards in the adult community as a whole with respect
to what is suitable material or conduct for minors; and
• Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.
The bill provides the third requirement regarding the literary, artistic, political, or scientific value
of the content is not applicable in an educational setting.
The bill amends s. 1006.28, F.S., to revise what materials a parent or resident may object to. A
parent or resident may object to any material used in a classroom, made available in a school or
classroom library, or included in a reading list that contains content which depicts or describes
sexual conduct, unless such material is specifically authorized as part of a health education
course, comprehensive health education, or approved through the State Board of Education for
specific educational purposes.
The bill provides such materials must be removed within 5 school days upon receipt of an
objection by a parent or resident of the county and must remain unavailable throughout the
objection review process. The school board may not consider potential literary, artistic, political,
or scientific value as a basis for retaining the material.
The SBE is required to monitor district compliance through regular audits and reporting, notify a
district of such noncompliance, and require the district to submit a corrective action plan within
30 days of receiving such notice. Additionally, the SBE may withhold the transfer of state funds,
discretionary grant funds, discretionary lottery funds, or any other funds specified by the
Legislature until the school district complies and may impose additional sanctions or
requirements as conditions for the continued receipt of state funds.
The bill takes effect on July 1, 2025.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not appear to require the cities and counties to expend funds or limit their
authority to raise revenue or receive state-shared revenues as specified by Article VII, s.
18, of the State Constitution.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None. BILL: SB 1692 Page 7
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
The First Amendment of the U.S. Constitution states that, “Congress shall make no law
… abridging the freedom of speech…” This language prohibits the government from
having the ability to constrain the speech of citizens. However, materials that constitute
child pornography, obscenity, or material harmful to minors may be restricted. Child
pornography, obscenity, and material harmful to minors have been defined in ch. 847,
F.S., and are consistent with federal law and the United States Supreme Court holdings
regarding such laws. The bill expands the definition of material harmful to children. The
expansion of such definition may subject laws relating to child pornography, obscenity,
and materials harmful to children to challenges under the First Amendment.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 847.001, 1006.28,
847.012, 847.0134, 847.0138, 847.0141, 1014.05.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None. BILL: SB 1692 Page 8
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.