Arkansas Senate approves bill to hold libraries accountable for ‘obscene’ material

Senate also sends bill that previously sought to regulate drag performances to governor’s desk

By: - February 22, 2023 8:18 pm

Sen. Dan Sullivan (R-Jonesboro) explains a bill he is sponsoring on the Senate floor Feb. 22, 2023. Senate Bill 81 would open the door to criminal liability for the distribution of “obscene” content by school and public libraries, with elected officials allowed to have the final say. (Tess Vrbin/Arkansas Advocate)

A bill that would open the door to criminal liability for the distribution of “obscene” content by school and public libraries passed the Arkansas Senate on a party-line vote Wednesday and will next be considered by the House.

All six Senate Democrats voted against Senate Bill 81, and 27 Republicans voted for it while two did not vote.

The proposed law would add the loaning of library materials to the statute governing the possession and distribution of obscene material. Arkansas’ 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.

The bill would remove schools and public libraries from the part of Arkansas law that exempts them from prosecution “for disseminating a writing, film, slide, drawing, or other visual reproduction that is claimed to be obscene.”

Sen. Dan Sullivan (R-Jonesboro), the bill’s sponsor, said it will protect children from sexual content and allow parents to be more aware of what their children are reading. Current library policies might not prevent elementary schoolers from accessing sexual content, he said.

If we read the Bible, it refers to rape and incest. The Song of Solomon is very, very provocative. I don’t want people to be able to say, ‘I don’t want the Bible in the library.’

– Senate Minority Whip Linda Chesterfield (D-Little Rock)

Employees of public or school libraries that deliberately 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.

“The librarian would have to knowingly violate that law,” Sullivan said. “If they don’t knowingly violate it, they’re free and clear.”

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 a public hearing, 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 city councils, the county judge or the county quorum court, Sullivan said.

“The city councils and the quorum courts did not oppose that [provision],” he said. “Mayors didn’t like it, but they didn’t oppose it.”

Eleven people, including several librarians, spoke against the bill before the Senate Judiciary Committee on Monday.

The bill’s opponents said it would unfairly restrict children’s reading options, it would prevent children from diverse backgrounds from seeing themselves represented in books and it did not account for children’s ability to choose not to read books they dislike.

Sen. Clarke Tucker (D-Little Rock)

Sen. Clarke Tucker (D-Little Rock) and Sen. Stephanie Flowers (D-Pine Bluff) were the only committee members to vote against the bill. The majority voted to advance it to the Senate floor.

“I know this is not Sen. Sullivan’s intent, but I think with the way the bill is written, we’re very seriously going into territory where we could have censorship in libraries,” Tucker said Wednesday.

Content restriction concerns

Gloria Mortin, representing the Washington County chapter of the conservative group Moms for Liberty, read to the committee some sexually explicit excerpts from two fiction books available in libraries.

Other witnesses said the excerpts were out of context, which the text of the bill says would not be allowed.

Tucker said Wednesday that the testimony made him wonder if there should be a vetting process for library materials that children can access, but he maintained that SB 81 is not the way to do it. He said local elected officials might not have enough legal knowledge of obscenity to make an accurate determination of obscene content.

He asked Sullivan during Monday’s committee meeting if the panels in charge of hearing complaints about library materials could decide their appropriateness based on criteria not already established in state or federal law. Sullivan said “Yes” and added that libraries should already have policies in place to address this issue.

This lack of specificity could allow content restriction that clashes with the constitutional right to free expression, Tucker said.

“Right now, [committees] are empowered to remove content from a library for basically any reason,” Tucker said. “This is where we get into very dangerous First Amendment territory.”

The bill stipulates that the committees cannot remove anything from libraries “solely for the viewpoints expressed within the material.”

“If we took that word ‘solely’ out, I would feel a lot better about this,” Tucker said.

Senate Minority Whip Linda Chesterfield (D-Little Rock) said the bill caused her “great concern” about “the bag of worms that we’re opening.”

Sen. Linda Chesterfield (D-Little Rock)
Sen. Linda Chesterfield (D-Little Rock)

“If we read the Bible, it refers to rape and incest,” Chesterfield said. “The Song of Solomon is very, very provocative. I don’t want people to be able to say, ‘I don’t want the Bible in the library.’”

Sullivan said that should not happen under the proposed law. Chesterfield expressed appreciation for this but still had other qualms about the bill.

“[I worry about] if we start allowing people who really haven’t read this stuff to make these kinds of decisions, and if we put people who are charged with libraries in jeopardy simply for doing what they have been asked to do,” Chesterfield said.

‘Targeting’

Librarians 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, Adam Webb, executive director of the Garland County Library System, told the Judiciary Committee on Monday.

Sullivan said Senate Bill 81 should remove this restriction, and he brought up an anecdote Flowers shared at Monday’s meeting.

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

Sullivan claimed that the librarian Flowers approached about the book broke the law. Flowers said that was not the case because she already knew about the book.

Flowers repeated her point from Monday’s meeting that books in school libraries come from Department of Education recommendations, not school librarians’ choices. She asked Sullivan if he knew this, and he said he did.

“That’s why I don’t understand your bill targeting school librarians,” Flowers said. “It should be directed at the Department of Education.”

Sullivan said he disagreed with this assertion.

School librarians have enough on their plates as is, Chesterfield said, citing her past experience as a teacher.

“I taught 160 students a day,” she said. “[Imagine] 160 parents a day coming in and saying, ‘Let me see what my child is reading,’ multiplied by a plethora of other classrooms. It almost creates a disaster.”

The House Judiciary Committee will be next to take up Senate Bill 81.

Former ‘drag’ bill heads to governor’s desk

Senate Bill 43, which initially restricted drag performances similarly to strip clubs and pornography shops, also passed the Senate with a party-line vote Wednesday and will go to Gov. Sarah Huckabee Sanders for final approval.

The original version of the bill, introduced in January, targeted transgender and nonbinary Arkansans, according to activists who opposed the bill. Sen. Gary Stubblefield (R-Branch) and Rep. Mary Bentley (R-Perryville), the bill’s sponsors, have repeatedly said the goal is to protect children from sexual content and behavior.

The bill was heavily amended earlier this month and no longer mentions the word “drag.” It defines an “adult-oriented performance” as one “that is intended to appeal to the prurient interest,” meaning overtly sexual, and features complete or partial nudity and the exposure of real or prosthetic breasts or genitalia.

This version of the bill would survive a potential legal challenge while previous versions of the bill would not, Stubblefield and Bentley have both said.

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The first version of Senate Bill 43 defined drag as “exhibit[ing] a gender identity that is different from the performer’s gender assigned at birth using clothing, makeup, or other accessories that are traditionally worn by members of and are meant to exaggerate the gender identity of the performer’s opposite sex” and singing, dancing, lip-syncing or performing in other ways in front of an audience.

An amendment adopted Jan. 30 redefined drag as a performance in which someone “exaggerates sexual aspects of the masculine or feminine body for entertainment purposes.”

Both previous versions of the bill classified a drag performance as an “adult-oriented business” similar to pornography, strip clubs and other sexually explicit content and activities. Such businesses are not allowed to be located within a certain distance of schools, parks and other places children frequent.

The amended bill is the first version to prohibit the use of public funds for such performances. In earlier testimony about the bill, some supporters said they objected to drag performers reading stories to children in public libraries.

The Senate passed the first version of the bill on Jan. 24, and the House passed the current version on Feb. 6.

Sanders has expressed support for the bill, and her office had input in the most recent amendment.

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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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