Amends existing law to revise the definition of “obscene material” and to revise the definition of “lewd matter.”

LEGISLATURE OF THE STATE OF IDAHO Sixty-eighth Legislature Second Regular Session - 2026 IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 795 BY STATE AFFAIRS COMMITTEE AN ACT1 RELATING TO OBSCENE MATERIAL AND LEWD MATTER; AMENDING SECTION 18-4101,2 IDAHO CODE, TO REVISE A DEFINITION; AMENDING SECTION 52-103, IDAHO3 CODE, TO REVISE A DEFINITION; AND DECLARING AN EMERGENCY AND PROVIDING4 AN EFFECTIVE DATE.5

Be It Enacted by the Legislature of the State of Idaho:6

SECTION 1. That Section 18-4101, Idaho Code, be, and the same is hereby7 amended to read as follows:8 18-4101. DEFINITIONS. The following definitions are applicable to9 this act:10 (A) "Obscene material" means any matter:11 (1) Which the average person, applying contemporary community stan-12 dards, would find, when considered as a whole, appeals to the prurient13 interest; and14 (2) Which depicts or describes patently offensive representations or15 descriptions of:16 (a) Ultimate sexual acts, normal or perverted, actual or simu-17 lated; or18 (b) Masturbation, excretory functions, or lewd exhibition of the19 genitals or genital area.20 Nothing herein contained is intended to include or proscribe any matter21 which, when considered as a whole, and in the context in which it is used,22 possesses serious literary, artistic, political or scientific value.23 In prosecutions under this act, where circumstances of production, pre-24 sentation, sale, dissemination, or publicity indicate that the matter is be-25 ing commercially exploited by the defendant for the sake of its prurient ap-26 peal, such evidence is probative with respect to the nature of the matter and27 can justify the conclusion that, in the context in which it is used, the mat-28 ter has no serious literary, artistic, political, or scientific value.29 (B) "Prurient interest" means a shameful or morbid interest in nudity,30 sex, or excretion, which goes substantially beyond customary limits of can-31 dor in description or representation of such matters. If it appears from the32 character of the material or the circumstances of its dissemination that the33 subject matter is designed for a specially susceptible audience or clearly34 defined deviant sexual group, the appeal of the subject matter shall be35 judged with reference to such audience or group.36 (C) "Matter" or "material" means any book, magazine, newspaper, or37 other printed or written material; or any picture, drawing, photograph, mo-38 tion picture, or other pictorial representation; or any statue or other fig-39 ure; or any recording, transcription, or mechanical, chemical, or electri-40 cal reproduction; or any other articles, equipment, machines, or materials.41

2 (D) "Person" means any individual, partnership, firm, association,1 corporation, or other legal entity; or any agent or servant thereof.2 (E) "Distribute" means to transfer possession of, whether with or with-3 out consideration, by any means.4 (F) "Knowingly" means having actual or constructive knowledge of the5 character of the subject matter or live conduct. A person shall be deemed to6 have constructive knowledge of the character of the subject matter or live7 conduct if he has knowledge of facts which would put a reasonable and prudent8 man on notice as to the suspect nature of the matter, and the failure to in-9 spect the contents is either for the purpose of avoiding such disclosure or10 is due to reckless conduct.11 (G) "Reckless conduct" is conduct which consciously disregards a sub-12 stantial and unjustifiable risk that matter may be obscene. The risk must be13 of such a nature and degree that, considering the nature and purpose of the14 actor's conduct and the circumstances known to him, its disregard involves15 a gross deviation from the standard of conduct that an average law-abiding16 person would observe in the actor's situation under like circumstances.17 (H) "Exhibit" means to show or display.18 (I) "Obscene live conduct" means any physical human body activity,19 whether performed or engaged in alone or with other persons, including but20 not limited to singing, speaking, dancing, acting, simulating, or pantomim-21 ing, where:22 (1) The average person, applying contemporary community standards,23 would find such conduct, when considered as a whole, appeals to the24 prurient interest; and25 (2) The conduct is patently offensive because it consists of:26 (a) Ultimate sexual acts, normal or perverted, actual or simu-27 lated; or28 (b) Masturbation, excretory functions, or lewd exhibition of the29 genitals or genital area.30 Nothing herein contained is intended to include or proscribe any con-31 duct which, when considered as a whole, and in the context in which it is32 used, possesses serious literary, artistic, political or scientific value.33 In prosecutions under this act, where circumstances of production, presen-34 tation, advertising, or exhibition indicate that live conduct is being com-35 mercially exploited by the defendant for the sake of its prurient appeal,36 such evidence is probative with respect to the nature of the conduct and can37 justify the conclusion that, in the context in which it is used, the matter38 has no serious literary, artistic, political or scientific value. Nothing39 herein contained is intended to include or proscribe the breastfeeding of a40 child or the expression of breast milk for the purpose of feeding a child.41

SECTION 2. That Section 52-103, Idaho Code, be, and the same is hereby42 amended to read as follows:43 52-103. MORAL NUISANCES -- DEFINITIONS. As used in title 52, Idaho44 Code, relating to moral nuisances.45 (A) "Knowledge" or "knowledge of such nuisance" means having knowledge46 of the contents and character of the patently offensive sexual conduct which47 appears in the lewd matter, or knowledge of the acts of lewdness, assigna-48 tion, or prostitution which occur on the premises.49

3 (B) "Lewd matter" is synonymous with "obscene matter" and means any1 matter:2 (1) which the average person, applying contemporary community stan-3 dards, would find, when considered as a whole, appeals to the prurient4 interest; and5 (2) which depicts or describes patently offensive representations or6 descriptions of:7 (a) ultimate sexual acts, normal or perverted, actual or simu-8 lated; or9 (b) masturbation, excretory functions, or lewd exhibition of the10 genitals or genital area.11 Nothing herein contained is intended to include or proscribe any matter12 which, when considered as a whole, and in the context in which it is used,13 possesses serious literary, artistic, political or scientific value.14 (C) "Lewdness" shall have and include all those meanings which are as-15 signed to it under the common law.16 (D) "Matter" means a motion picture film or a publication or both.17 (E) "Moral Nuisance" means a nuisance which is injurious to public18 morals.19 (F) "Motion picture film" shall include any:20 (1) film or plate negative;21 (2) film or plate positive;22 (3) film designed to be projected on a screen for exhibition;23 (4) films, glass slides or transparencies, either in negative or posi-24 tive form, designed for exhibition by projection on a screen.25 (5) video tape or any other medium used to electronically reproduce im-26 ages on a screen.27 (G) "Person" means any individual, partnership, firm, association,28 corporation, or other legal entity.29 (H) "Place" includes, but is not limited to, any building, structure or30 places, or any separate part or portion thereof, whether permanent or not, or31 the ground itself.32 (I) "Publication" shall include any book, magazine, article, pamphlet,33 writing, printing, illustration, picture, sound recording, or a motion pic-34 ture film which is offered for sale or exhibited in a coin-operated machine.35 (J) "Sale" means a passing of title or right of possession from a seller36 to a buyer for valuable consideration, and shall include, but is not limited37 to, any lease or rental arrangement or other transaction wherein or whereby38 any valuable consideration is received for the use of, or transfer or posses-39 sion of, lewd matter.40

SECTION 3. An emergency existing therefor, which emergency is hereby41 declared to exist, this act shall be in full force and effect on and after42 July 1, 2026.43