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: CS/SB 1692
INTRODUCER: Criminal Justice Committee and Senator McClain
SUBJECT: Material that is Harmful to Minors
DATE: March 20, 2025
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Wyant Stokes CJ Fav/CS
2. ED
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1692 amends s. 1006.28, F.S., to add a modified definition for material that is “harmful to
minors.” Additionally, the bill revises 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 reenacts s.1014.05, F.S., regarding the requirement for school districts to notify parents
of procedures relating to the objection process.
The bill takes effect on July 1, 2025.
REVISED: BILL: CS/SB 1692 Page 2
II. Present Situation:
Freedom of Speech and the Protection of Minors
The U.S. Supreme Court addressed the issue of whether the First Amendment imposes
limitations upon the exercise by a local school board of its discretion to remove library books
from high school and junior high school libraries in Pico.
1
In that case, books were removed
from libraries that the school board characterized as “anti-American, anti-Christian, anti-Semitic,
and just plain filthy;” The board further stated “it is our duty, our moral obligation, to protect the
children in our schools from this moral danger as surely as from physical and medical dangers.”
2
The court recognized precedent that local school boards have broad discretion in the
management of school affairs.
3
The court also recognized that the discretion of the States and
local school boards in matters of education must be exercised in a manner that comports with the
transcendent imperatives of the First Amendment.
4
The court held in Pico that local school
boards may not remove books from school library shelves simply because they dislike the ideas
contained in those books and seek by their removal to ‘prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion.’
5
The Florida Legislature passed HB 1069 in 2023, which, in part, provided that a parent or
resident may proffer evidence to the district school board that education materials depict or
describe sexual conduct, unless such material is for a specified course or identified by State
Board of Education rule. Any material that is subject to such objection must be removed within 5
school days of receipt of the objection and remain unavailable to students until the objection is
resolved.
6
As a result of passing such legislation, a number of lawsuits were filed claiming that
the law violates First Amendment rights. Numerous objections to educational materials have
taken place and have since been litigated.
7
In 2024, Peter Parnell, et al., filed suit against the School Board of Nassau County, seeking
declaratory and injunctive relief for the removal of 36 books, including, And Tango Makes
Three. In September of 2024, the parties signed a settlement agreement. The terms in the
settlement included, in part, that And Tango Makes Three contains no obscene material in
violation of the obscenity statue, is appropriate for students of all ages, and has pedagogical
value. Additionally, the book was immediately restored, with no age restrictions, to the Nasssau
County’s Libraries.
8
Twenty two other challenged books were ordered to return to the libraries by September 13,
2024, and the agreement stated the appropriate grade level for each book. Twelve books were to
1
Board of Educ., Island trees Union free School District No. 26 et al., v. Pico, 102 S. Ct. 2799 (1982).
2
Id. at 2803.
3
Id. at 2806.
4
Id. at 2807.
5
Id at 2810.
6
Ch. No. 2023-105, L.O.F.
7
Peter Parnell, et al, v. School Board of Nassau County, Florida, Case: 3:24-cv-00492-WWB-MCR. (Complaint for
Declaratory and Injunctive Relief).
8
Id. (Settlement Agreement). BILL: CS/SB 1692 Page 3
be returned no later than October 31, 2024, and may be checked out by students 18 years of age
or older, or with parental consent.
9
Background
Freedom of speech is guaranteed to citizens in the United States Constitution and the State
Constitution.
10
As a foundational principle, this prohibits the government from dictating what
people “see or read or speak or hear.”
11
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.
12
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.
13
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.’”
14
Stated slightly differently, this
means that some forms of pornography are protected under the Constitution, but obscenity is not.
Obscenity and The Miller Test
The U.S. Supreme Court has long held that obscenity is not within the area of constitutionally
protected speech, however, sex and obscenity are not synonymous. The Court held that portrayal
of sex, for example, in art, literature and scientific works, is not itself a sufficient reason to deny
material the constitutional protections of free speech. Obscene material is material that deals with
sex in a manner appealing to prurient interests.
15
The U.S. Supreme Court’s standard for
determining what material is obscene has evolved over the years.
16
In 1973, the U.S. Supreme Court developed a three-prong test in Miller v. California,
17
to define
obscene speech. The court acknowledged the inherent dangers of undertaking to regulate any
form of expression, and that statutes designed to regulate obscene materials must be carefully
limited. This is the test that is still used today to determine whether speech is obscene. 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
9
Id.
10
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.
11
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245 (2002).
12
Id.
13
Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd, 502 U.S. 105, 118 (1991).
14
Ashcroft, 245, quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).
15
Roth v. U.S., S. Ct. 1304 (1957).
16
See Roth v. U.S., S. Ct. 1304 (1957); A book named ‘John Cleland’s Memoirs of a Woman of Please,’ et al., v. Attorney
General of the Commonwealth of Massachusetts, 86 S. Ct. 975 (1965); Miller v. California, 413 U.S. 15 (1973).
17
Miller v. California, 413 U.S. 15 (1973). BILL: CS/SB 1692 Page 4
• The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
18
In addressing the contemporary community standard, the court in Miller stated “to require a state
to structure obscenity proceedings around evidence of a national ‘community standard’ would be
an exercise in futility,” and held that the requirement of the jury to evaluate the materials with
reference to contemporary standards of the State is constitutionally adequate.
19
Material Harmful to Minors
The power of the state to control the conduct of children reaches beyond the scope of its
authority over adults. The state may give minors a more restricted right than that assured to
adults to determine for themselves what sex material they may read or see.
20
The U.S. Supreme
Court held in Ginsberg, that a statute which defined obscenity of material on a basis of its appeal
to minors, by prohibiting the sale of obscene material harmful to minors, to youths had a rational
relation to the objective of safeguarding such minors from harm, and was constitutionally valid.
21
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.”
22
Despite the Court’s clear ruling that a state may regulate material harmful to minors, but not
obscene for adults, some statutes have been found unconstitutionally overbroad and criminalized
constitutionally protected speech. For example, in Powell’s Books Inc. v. Kroger, the Ninth
Circuit Court of Appeals struck down a pair of statutes aimed at prohibiting “luring” and
“grooming.”
23
The first statute struck down in this case criminalized providing children under the
age of 13 with sexually explicit material, and the second statute criminalized providing minors
under the age of 18 with visual, verbal, or narrative descriptions of sexual conduct for the
purpose of sexually arousing the minor or the furnisher, or inducing the minor to engage in
sexual conduct.
24
In Powell’s Books, Inc, the court found that speech that is neither obscene as to youths nor
subject to some other legitimate proscription cannot be suppressed simply to protect youth from
ideas or images legislators find unsuitable. “To criminalize furnishing material solely intended
to titillate the reader will certainly sweep up some material that appeals to the prurient interests
of children and minors, but it will also criminalize a broad swath of material that does not appeal
to prurient interests.
25
The court found that the statutes were overbroad and reached far more
material than hardcore pornography or material that is obscene to minors.
18
Id.at 24.
19
Id. at 33-34.
20
Ginsberg v. New York, 88 S. Ct. 1274 (1968).
21
Id. at 1282
22
Simmons v. State, 944 So. 2d 317 (Fla. 2006). See also Ashcroft v. Free Speech Coal., 535 U.S. 234, 244-45 (2002).
23
See Powell’s Books, Inc. v. Kroger, 622 F. 3d 1202 (2010).
24
Powell’s Books, Inc. v. Kroger, 622 F. 3d 1202, 1206-07 (2010).
25
Id. at 1214-15. BILL: CS/SB 1692 Page 5
Similarly, in 2011, in Entertainment Merchants, the U.S. Supreme Court found that even where
the protection of children is the object the constitutional limits on governmental action apply.
While Entertainment Merchants did not address obscenity directly, it held a statute that regulated
violent video games for minors was unconstitutional, and in doing so, noted that minors are
guaranteed protections of the First Amendment.
Minors are entitled to a significant measure of First Amendment protection, and
only in relatively narrow and well defined circumstances may government bar
public dissemination of protected materials to them. No doubt a state possesses
legitimate power to protect children from harm, but that does not include a free
floating power to restrict the ideas to which children may be exposed. Speech that
is neither obscene as to youths nor subject to some other legitimate proscription
cannot be suppressed solely to protect the young from ideas or images that a
legislative body thinks unsuitable for them.
26
Florida Transmission of Material Harmful to Minors
Because the state may modify the test for obscenity as it relates to what is obscene (or “harmful
to minors”), courts have upheld the Miller test, as modified for minors. The Miller test is
incorporated into Florida’s definition of what is “harmful to minors” in s. 847.001(7), F.S., and
“obscenity” in s. 847.001(12), F.S.
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
27
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.
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.
28
• 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.
29,30
26
Brown, Governor of California, et al., Entertainment Merchants Ass’n et al., 131 S. Ct. 2729, 2735-36 (2011) (citing
Ernoznik v. Jacksonville, 422 U.S. 205 (1975); Ginsberg v. New York, 88 S. Ct. 1274 (1968); Prince v. Massachusetts, 321
U.S. 158 (1944)).
27
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.
28
Section 847.0138(2), F.S.
29
Section 847.0138(3), F.S.
30
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: CS/SB 1692 Page 6
The Supreme Court of Florida has upheld Florida’s criminal laws relating to the transmission of
harmful materials. In Simmons, the court noted that sexual expression which is indecent but not
obscene is protected by the First Amendment, however the state may regulate the content of
constitutionally protected speech in order to promote a compelling interest if it chooses the least
restrictive means to further the articulated interest.
The court in Simmons found that the term harmful to minors is adequately defined by a reference
to the three prong miller standard, as modified to apply to minors. The court also noted that the
third prong in Miller is particularly important because it allows appellate courts to impose some
limitations and regularity on the definition.
31
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.
32
K-12 students and their parents are afforded numerous statutory rights
pertaining to student education, including reproductive health and disease education.
33
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.
34
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.
35
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.
31
Simmons v. Florida, 944 So. 2d 317 (2006).
32
Section 1002.20, F.S.
33
Id.
34
Section 1003.42(5), F.S.
35
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: CS/SB 1692 Page 7
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
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.
36
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.
37
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.,
38
or s.
1006.40(3)(c), F.S.,
39
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,
40
unless such material is for a course relating to
health education and the instruction in acquired immune deficiency syndrome (AIDS),
41
the prevention of child sexual abuse, exploitation, and human trafficking,
42
the awareness
of the benefits of sexual abstinence as the expected standard and the consequences of
teenage pregnancy for grades 6 through 12,
43
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.
36
Section 1006.28(4)(a), F.S.
37
Section 1006.28(2)(a)2., F.S.
38
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.
39
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.
40
“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.
41
Section 1003.46, F.S.
42
Section 1003.42(2)(o)1.g.,F.S.
43
Section 1003.42(2)(o)3., F.S. BILL: CS/SB 1692 Page 8
III. Effect of Proposed Changes:
The bill amends s. 1006.28, F.S., to add a modified definition for material that is “harmful to
minors.”
“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; and
• Is patently offensive to prevailing standards in the adult community as a whole with respect
to what is suitable material or conduct for minors.
The bill does not include the requirement that the material, taken as a whole, is without serious
literary, artistic, political, or scientific value for minors, for it to be considered harmful to minors,
for the purpose of a parent or resident objecting to educational materials.
Additionally, the bill revises 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. BILL: CS/SB 1692 Page 9
C. Trust Funds Restrictions:
None.
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 maintains the definition for what is considered harmful to minors within ch. 847,
F.S., thus maintaining the constitutionality of Florida’s criminal statutes relating to
harmful materials. However, the bill removes one of the prongs of the “Miller Test,” as
modified for what is considered material harmful to minors for purposes of objecting to
educational materials.
The U.S. Supreme Court has held that local school boards may not remove books from
school library shelves simply because they dislike the ideas contained in those books and
seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion.’
44
Under the bill, a parent or resident may object to
educational material, even if such material has a serious literary, artistic, political, or
scientific value for minors. Therefore, material that is not considered “harmful to minors”
under the constitutionally approved standard, may be objected to. The modification of the
Miller test by removal of such value requirement may subject the law 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.
44
Board of Educ., Island trees Union free School District No. 26 et al., v. Pico, 102 S. Ct. 2799 (1982). BILL: CS/SB 1692 Page 10
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 1006.28 and
1014.05.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Criminal Justice Committee on March 18, 2025:
The committee substitute:
• Removes the language amending the definition of “harmful to minors” in s.
847.001, F.S., and removes the corresponding chapter 847 statutes being
reenacted by this change.
• Adds a modified definition for “harmful to minors” under s. 1006.28, F.S.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.