TITLE 6

ACTIONS IN PARTICULAR CASES

CHAPTER 38

LIABILITY FOR PUBLISHERS AND DISTRIBUTORS OF MATERIAL HARMFUL TO MINORS ON THE INTERNET

6-3809.  SEVERABILITY. (1) If any application of any provision in this chapter to any person, group of persons, or circumstances is found by a court to be invalid, preempted, or unconstitutional, for any reason whatsoever, then the remaining applications of that provision to all other persons and circumstances shall be severed and preserved and shall remain in effect. All constitutionally valid applications of the provisions in this chapter shall be severed from any applications that a court finds to be invalid, preempted, or unconstitutional because it is the legislature’s intent and priority that every single valid application of every statutory provision be allowed to stand alone.

(2)  If any provision of this chapter is found by any court to be unconstitutionally vague, then the applications of that provision that are not found to be constitutionally vague shall be severed and remain in force, consistent with the severability requirements of this section.

(3)  No court may decline to enforce the severability requirements of this section or this chapter on the ground that severance would rewrite the statute or involve the court in legislative or lawmaking activity. A court that declines to enforce or enjoins a state official from enforcing a statutory provision is never rewriting a statute or engaging in legislative or lawmaking activity, as the statute continues to contain the same words as before the court’s decision. A judicial injunction or declaration of unconstitutionality:

(a)  Is nothing more than an edict prohibiting enforcement of the disputed statute against the named parties to that lawsuit, which may subsequently be vacated by a later court if that court has a different understanding of the requirements of the constitution of the state of Idaho or United States constitution;

(b)  Is not a formal amendment of the language in a statute; and

(c)  No more rewrites a statute than a decision by the executive not to enforce a duly enacted statute in a limited and defined set of circumstances.

(4)  If any state or federal court disregards any of the severability requirements of this section or this chapter and declares or finds any provision of this chapter facially invalid, preempted, or unconstitutional, when there are discrete applications of that provision that can be enforced against a person, group of persons, or circumstances without violating federal law or the federal or state constitutions, then that provision shall be interpreted, as a matter of state law, as if the legislature had enacted a provision limited to the persons, group of persons, or circumstances for which the provision’s application will not violate federal law or the federal or state constitutions, and every court shall adopt this saving construction of that provision until the court ruling that pronounced the provision facially invalid, preempted, or unconstitutional is vacated or overruled.

History:

[6-3809, added 2024, ch. 113, sec. 1, p. 493.]