Could a Kansas bill censor non-explicit, LGBTQ+ content? Lawyers, lawmakers disagree

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A Kansas bill could consider a photo of a same-sex couple holding hands pornographic, some Democratic lawmakers warn.

They say a bill aimed at barring children from accessing online material considered harmful to minors could carry serious unintended consequences for LGBTQ+ communities.

The bill would require users to verify they are over 18 years old to enter any website where more than 25% of its content is deemed “harmful to minors.” It aims to restrict children’s access to pornography.

However, homosexuality is listed in the statute alongside overtly sexual acts as harmful to minors. The statute has raised questions about whether the law could be applied to censor LGBTQ+ content in books, chat rooms, and non-explicit photographs of same-sex couples.

Rep. Rui Xu, a Westwood Democrat, recently asked lawmakers on the House floor whether the bill could censor a website listing the “top 10 most gay-friendly cities.” He said this bill is just one in a series of bills written vaguely where Republican lawmakers did not fully consider the vast, unintended consequences that may follow.

“It’s broad and unclear what homosexuality means there,” Xu told The Star. “This would have been fairly uncontroversial legislation if we were to amend these outdated laws on the books. But no mind has been given to that.”

Efforts to censor LGBTQ+ expression

Efforts to censor LGBTQ+ expression have spread across the country. Nearly half of the books targeted for censorship at public libraries last year focused on people of color or members of the LGBTQ+ community, according to the American Library Association.

Last week, the measure was sent to Democratic Gov. Laura Kelly’s desk with bipartisan support – flipping 11 Democratic senators and nine House Democrats. If Kelly signs the bill, Kansas would join eight states including Texas, Arkansas, and Utah restricting minors’ access to explicit online content.

A lead proponent of the legislation, Brittany Jones, a lobbyist for the conservative Kansas Family Voice and a lawyer, said concerns about the bill censoring LGBTQ+ content are unrealistic.

“We all know what we’re talking about in this bill,” Jones said. “Everyone should be able to agree that children should not have access to sexual content. And if you read the bill, that’s all it says. They’re trying to make it into something that it’s not and has not been done in any other state it’s passed in.”

Groups who advocate for LGBTQ+ rights said they are keeping a watchful eye on the bill but believe it would not prevent access to non-explicit content.

In a time when LGBTQ+ Kansans are facing real attacks from the Legislature, Taryn Jones, a lobbyist for Equality Kansas said it is important to avoid creating additional worry for legislation that is unlikely to affect the lives of everyday people.

“We need to be careful not to create more anxiety and more worry for people,” she said. “That’s always our concern when we look at bills like this – making sure we’re being upfront and honest about what the bill does but not fear-mongering to make people worry more than they already are.”

Disagreement on the bill’s meaning

Legal experts and advocates disagree on what the legislation could have in online, LGBTQ-friendly spaces. Some observers of the bill have claimed that a photo of a same-sex couple could be considered pornographic, but others say that’s a misinterpretation of the legislation.

Rep. John Carmichael, a Wichita Democrat who is an attorney, said he voted against the measure for many reasons. Most importantly, because the legislation is written so vaguely the standard for censorship is often subjective.

It’s uncertain what effects the bill could have on freedom of speech, he said.

“Because a statute defining what is harmful to minors is so subject to interpretation, I don’t think you’re ever going to find someone who can say with certainty what is allowed and what is forbidden,” Carmichael said. “You’ll find that one judge who says it’s allowed, another who says it’s forbidden and that it’s a crime, and another who would call it English literature.”

D.C. Hiegert, an attorney who is an LGBTQ+ Fellow at the American Civil Liberties Union of Kansas said that while state statute does include homosexuality in its definition of sexual conduct, the legislation also says any material barred from minors must also meet the legal requirements for obscenity.

The bill would not allow for censorship of non-explicit LGBTQ+ content, he said. Rather, the law could only be used to restrict content online if it is sexual.

“While it is unfortunate that a lot of Kansas laws have remnants of old, homophobic or transphobic language in them, this is an instance where it is not necessarily explicitly being used in a homophobic or transphobic way,” Hiegert said.

Hiegert continued: “If folks are trying to use this legislation to ban all LGBTQ content, that is very clearly not what the bill does, and that would be an unconstitutional attempt to censor access to LGBTQ content.”

A three-tiered test must be applied to determine whether some content is legally obscene. That includes determining whether the material could evoke sexual excitement, that the sexual conduct is viewed as offensive, and that it lacks serious literary, artistic, political, or scientific value.

What content is considered obscene?

Max Kautsch, a Lawrence attorney who specializes in First Amendment law, said he vehemently disagreed with Hiegert’s interpretation. Because the test to determine if content is obscene is dependent on who is reviewing it, Attorney General Kris Kobach, a Republican, would be in charge of determining what is considered obscene, he said.

Kautsch said the legislation, because it is written so vaguely, could hypothetically shut down content like gay pride newsletters.

“Because they defined sexual conduct as to include homosexuality by reference, that makes it so much more broad and sweeping and potentially dangerous than in any other age verification bills across the country,” he said. “The threat is absolutely there.”

Rep. Jason Probst, a Hutchinson Democrat, voted with Republicans to pass the legislation. The bill clearly would only restrict explicit images of homosexual couples, not affection in any other context, he said. Even if Kobach interpreted the bill to restrict LGBTQ+ expression, a court would block it, he countered.

“I don’t believe there’s a single court in Kansas that would read this bill and the homosexuality statute that would say two men holding hands or showing affection is considered pornographic,” he said. “The language of the statute is narrow enough that I don’t think that’s possible.”

The bill’s sponsor, Rep. Susan Humphries, a Wichita Republican, said it was ridiculous that certain groups were focusing on one word in a bill that guarantees to have a measurable, positive impact on young people in the state.

“We’re talking about what a reasonable person would consider harmful to minors,” Humphries said. “Every kind of sexual conduct is listed in statute – whether that be sexual conduct between a husband and wife, monogamous, heterosexuality, homosexuality – all of those things are listed. It doesn’t target any particular kind of sexual behavior.”

Will Kansas change outdated statutes?

Kansas often retains outdated and unconstitutional statutes that do not align with federal law and Supreme Court rulings.

Under the state constitution, same-sex marriage is still illegal. A gay person could still be charged with criminal sodomy for engaging in consensual sexual relations, and state-level nondiscrimination statutes do not classify sexual orientation and gender identity as protected classes.

For years, Kansas Democrats have tried and failed to modernize these state statutes. But legislators hope the confusion around the outdated homosexuality statute and the upcoming election will add urgency to the cause.

Last month, Rep. Brandon Woodard, a Lenexa Democrat who is gay, tried to force lawmakers to debate a bill that would have repealed a provision in the state constitution that prohibits same-sex marriage. But the motion, which would have allowed the body to debate the measure, failed 43-61.

And after some Supreme Court Justices indicated they want to review Obergefell v. Hodges – or the case that legalized same-sex marriage nationwide – Woodard said it’s now critical to update these state statutes if the law was overturned.

Woodard said that effort has bipartisan support, and the bills would likely pass if legislative leadership would allow for a floor vote.

“We have Republicans that are willing to clean up these state statutes and repeal these unconstitutional laws like the marriage ban,” he said. “The votes are there to repeal these outdated statutes. It’s just going to take legislative leadership who is willing to do that.”

This isn’t the first time old statues have caused uncertainty in LGBTQ+ spaces, Hiegert said. He hopes the pushback from this bill will be a wake-up call for legislators to modernize laws.

“I hope that this type of consistent confusion and the fear that pops up in the community would be enough to kind of shake some legislators awake to think more critically about making these changes,” Hiegert said. “But I guess we’ll have to see what comes with the next session.”

Probst said he has already been in conversation with other legislators about updating state statutes, and some are open to the idea. Modernizing them would be central to eliminating gray areas in instances similar to the outdated “harmful to minors’‘ statute, he said.

“These statutes are unconstitutional,” he said. “They’ve been invalidated by court rulings. But it does no harm to go in and codify to make those statutes clearer. There are specific sections, certainly applicable in the age-verification bill circumstance, where it would have been worthwhile to get that language out of (the) statute.”

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