Proposed law to hold libraries accountable for ‘obscene’ material passes Arkansas committee

Librarians say the bill would unfairly restrict what children can read

By: - February 20, 2023 2:30 pm

Stephanie Sweeney, a librarian at the Craighead County Jonesboro Public Library, speaks against Senate Bill 81 before the Senate Judiciary Committee on Feb. 20, 2023. (Tess Vrbin/Arkansas Advocate)

This story was updated at 7:29 p.m. on Feb. 20, 2023.

An Arkansas Senate committee approved a bill Monday that would open the door to criminal liability for the distribution of “obscene” content by libraries.

The Senate Judiciary Committee voted along party lines to pass the bill after hearing testimony from only 16 of the 23 members of the public who signed up to speak for or against the bill.

Senate Bill 81 would remove schools and public libraries from the part of Arkansas state code that currently exempts them from prosecution “for disseminating a writing, film, slide, drawing, or other visual reproduction that is claimed to be obscene” under existing obscenity laws.

Sen. Dan Sullivan (R-Jonesboro) (John Sykes/Arkansas Advocate 02/15/2023)
Sen. Dan Sullivan (R-Jonesboro)
(John Sykes/Arkansas Advocate)

 

The state’s definition of obscenity is “that to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest,” with prurient meaning overtly sexual.

Senate Bill 81 would not amend the definition of obscenity, but it would add the loaning of library materials to the statute governing the possession and distribution of obscene material.

Sen. Dan Sullivan (R-Jonesboro), the bill’s sponsor, said the policy would allow parents to be more aware of what their children are reading and protect children from sexually explicit content.

“We don’t let kids smoke, we don’t let kids drink, we don’t let them drive — the list can go on forever,” Sullivan said. “We protect children in this way. This bill seeks to add library material that’s inappropriate to that list of things the state of Arkansas is willing to do to protect our children.”

Employees of public or school libraries that “knowingly” distribute obscene material or inform others of how to obtain it would risk conviction for a Class D felony, the bill states. Knowingly possessing obscene material would risk conviction of a Class A misdemeanor.

Anyone would be allowed to “challenge the appropriateness” of school or public libraries’ offerings and have them reviewed by a committee of five to seven people selected by school principals or head librarians. The committee would vote on whether to remove the material after hearing the complainant’s case in a public meeting, and a complainant may appeal the committee’s decision if the majority votes no.

Appeals at school libraries would go to the school board for a final decision, and appeals at public libraries would go to the county judge or the county quorum court, all of whom are elected officials, Sullivan said.

Brittani Brooks, a librarian at Pulaski Heights Middle School in Little Rock, said the proposed policy will be detrimental to the school’s “very diverse population” of students who come from “pretty much every background.”

“I’ve been an educator for 20 years,” Brooks said. “When I first heard about this bill, it broke my heart. It made me feel like I could not serve the families at my school.”

Policy and legal debate

Brooks was one of 11 people, including several librarians, who spoke against the bill. None of the five witnesses for the bill were librarians.

Gloria Mortin, representing the Washington County chapter of the conservative group Moms for Liberty, said This Book Is Gay by Juno Dawson and Gender Queer: A Memoir by Maia Kobabe are too graphic to be in school libraries but are available anyway.

Instead of current legislators worrying about certified librarians intentionally placing obscene materials in the hands of students, I wonder if any efforts have been made toward providing these same students with libraries in their homes, their schools and their communities.

– LaToya Morgan, Carver Elementary School librarian

Mortin also read sexually explicit excerpts from the fiction books Flamer by Mike Curato and Me and Earl and the Dying Girl by Jesse Andrews.

However, a book challenged under the proposed law “shall be reviewed in its entirety and shall not have selected portions taken out of context,” according to the text of the bill.

Adam Webb, executive director of the Garland County Library System, mentioned this to the committee.

“If you would like to, you can check out any of those books [Mortin referenced] at your local public library, read them in their entirety and make the decision for yourself whether you think they’re appropriate for children or not,” Webb told the committee.

Webb quoted a U.S. Supreme Court ruling, West Virginia State Board of Education v. Barnette of 1943, which decided that students should not be required to salute the American flag in schools because their right not to do so is protected by the First Amendment.

“‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, shall prescribe what is orthodox in matters of opinion,’” Webb read to the committee. “That is a quote that’s been used over and over again in regards to First Amendment cases, and I hope it’s one that you will stand by today. We can’t make arbitrary decisions on what is constitutionally protected speech.”

Arkansas has its own legal precedent for libraries’ First Amendment freedoms, said John McGraw, executive director of the Faulkner County Library System.

In 2003, the U.S. District Court for the Western District of Arkansas decided the Cedarville School District violated the First Amendment by requiring signed permission slips from parents allowing their children to read the Harry Potter books.

Senate Bill 81 imposes stronger restrictions than that, and the Legislature should not be acting in a judicial capacity, McGraw said.

“This is not going to fly with the courts, and Cedarville, Arkansas is not full of wizards and witches,” said McGraw, who is also a member-at-large on the Arkansas Library Association executive board.

A 1968 U.S. Supreme Court ruling, Epperson v. Arkansas, declared it unconstitutional for the Legislature to pass a law forbidding the teaching of evolution in public schools. If Senate Bill 81 becomes law, it could run afoul of this ruling, McGraw said.

“If you need seven votes on the quorum court to get rid of a biography of Charles Darwin, there’s nothing in this bill to stop that,” he said.

Additionally, librarians already could be charged with a Class A misdemeanor for sharing with parents what their children are checking out from the library, so they are not simply “refusing” to disclose this information, Webb said.

Access to information

Kay Jester, a mother and grandmother, said the lack of content monitoring from libraries concerned her. Exposure to “bad material” is “devastating” for children’s emotional and mental health, based on a personal experience, she said.

Brooks, however, said books about sexual violence can be validating rather than further traumatizing to children who have experienced it.

She used the book Speak by Laurie Halse Anderson as an example, saying it is “on a list that’s going around schools.” The novel’s teenage protagonist stops speaking after another student rapes her, and Brooks said her own daughter was sexually assaulted at school.

Libraries are essential for children who cannot get support from their families, Brooks said.

“Every child does not have that, but every child does have a library with books,” she said. “It can provide a story that might help them come to an adult and get help.”

If you need seven votes on the quorum court to get rid of a biography of Charles Darwin, there’s nothing in this bill to stop that.

– John McGraw, executive director of the Faulkner County Library System

Ally Thomlinson said she once was one of those children without a safe and stable family. She had two babies when she was a teenager as a result of an adult “preying upon [her] vulnerability,” she said.

“I turned to my librarian to teach me how to become a mother,” Thomlinson said. “I was not living in an echo chamber anymore once I had access to materials that could teach me how to allow my children to have boundaries.”

LaToya Morgan said she did not see herself represented in books as a child until a teacher introduced her to Black women authors. Morgan is now a librarian at Carver Elementary School in Little Rock, where only a quarter of students read at grade level, she said.

“Instead of current legislators worrying about certified librarians intentionally placing obscene materials in the hands of students, I wonder if any efforts have been made toward providing these same students with libraries in their homes, their schools and their communities,” Morgan said.

Librarians are not supposed to be “gatekeepers” of content for any reason, including both the substance of the content and a potential reader’s age, said Stephanie Sweeney, a librarian with the Craighead County Jonesboro Public Library.

Senate Bill 81 does not account for children’s ability to decide what they do and don’t read, Sweeney said.

“If they pick up a book and don’t like what’s inside, they can close it,” she said. “The book will not chase after them and yell the words out.”

“Micromanagement”

Obscene material is not protected by the First Amendment, according to Miller v. California, a 1973 U.S. Supreme Court ruling that created the three-step “Miller test” for obscenity.

An item must meet all three criteria to be considered legally obscene:

  • If the entire work “appeals to the prurient interest” based on “contemporary community standards,” as judged by the average person;
  • If it depicts or describes sexual behavior “in a patently offensive way”;
  • If the entire work “lacks serious literary, artistic, political, or scientific value.”

Sen. Clarke Tucker (D-Little Rock) asked Sullivan if the committees in charge of hearing complaints could make decisions on the appropriateness of materials based on criteria not established in state or federal law, including the Miller test.

Sullivan said yes and added that libraries should already have policies in place to address this issue.

“I don’t want to micromanage libraries,” he said.

Sullivan’s comment drew laughter from the audience, most of whom were against the bill. Chairman Sen. Gary Stubblefield (R-Branch) said anyone who disturbed the meeting would be removed from the committee room.

Sen. Stephanie Flowers (D-Pine Bluff)

Stubblefield later halted debate after the meeting had been in progress for its planned two hours, even though five witnesses had not had the chance to speak. Two witnesses gave up their time so others could speak.

Tucker was one of two committee members to vote no on the bill.

Vice Chair Sen. Stephanie Flowers (D-Pine Bluff) also voted no. She said she knew from experience as a parent that some library content might be inappropriate, but school library materials might come from state Department of Education recommendations rather than school librarians’ own decisions.

Years ago, Flowers’ preteen son checked out a book she deemed inappropriate, and school librarians told her it was on the shelf because of a statewide reading program, not because they chose it, she said.

“I think it’s incumbent for parents to watch what their children are reading — not to just ban books, but to do like I did,” Flowers said. “I want to know what he’s reading, if he’s understanding it, how it’s affecting him and then deal with it if I think it’s hitting him in a negative way.”

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Tess Vrbin
Tess Vrbin

Tess Vrbin came to the Advocate from the Arkansas Democrat-Gazette, where she reported on low-income housing and tenants' rights, and won awards for her coverage of 2021 flooding and tornado damage in rural Arkansas. She previously covered local government for The Commercial Dispatch in Mississippi and state government for the Columbia Daily Tribune in Missouri.

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