Arkansas committee rejects proposed law to hold libraries accountable for ‘obscene’ material

By: - March 7, 2023 10:30 pm
House Judiciary witnesses 3.7.23

From left: Middle school librarian Brittani Brooks and transgender activists Rumba Yambú and Jessica Disney listen to testimony against Senate Bill 81 before the House Judiciary Committee on March 7, 2023. All three spoke against the bill, which would have opened the door to criminal liability for librarians distributing content that local elected officials consider “obscene.” (Tess Vrbin/Arkansas Advocate)

An Arkansas legislative panel on Tuesday rejected a proposed law that would have opened the door to criminal liability for the distribution of “obscene” content by school and public libraries.

The House Judiciary Committee voted down Senate Bill 81 with a voice vote after three hours of discussion and testimony. The bill’s sponsors, Sen. Dan Sullivan (R-Jonesboro) and Rep. Justin Gonzales (R-Okolona) have the option of bringing it back up for discussion.

The bill previously passed the Senate with a party-line vote on Feb. 22.

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.

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.

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 bill’s opponents have said it would unfairly restrict children’s reading options and prevent children from diverse backgrounds from seeing themselves represented in books. They’ve also said it does not account for children’s ability to choose what they do and don’t read.

My books have limits, and they are the book covers. My children have limits, and they are the parents. My library has limits, and that’s the First Amendment.

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

Librarians do not force anyone, including children, to read specific books, said Leslie Switzer, a librarian in the Crossett School District.

“If students aren’t exposed to literature that represents them, chances are they won’t become readers,” she said. “We already have too many students in Arkansas reading below grade level. How can we have a literate society if students are limited to reading what others think is appropriate?”

Switzer was one of 20 people, including several librarians, who spoke against the bill Tuesday. She added that she does not provide the same books at the Crossett High School library that she did when she supervised the Crossett Elementary School library.

Libraries already have processes in place to vet the materials on the shelves and handle challenges to those materials from parents, several witnesses said.

All school libraries have to have challenge policies in order to be accredited by the state Department of Education, said Brittani Brooks, a librarian at Pulaski Heights Middle School in Little Rock.

“To say that was not in place before [SB 81] is a lie,” Brooks said.

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

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School librarians across Arkansas have already been removing books from shelves out of a fear of challenges and litigation, Brooks said.

“This is happening behind closed doors because this bill has already passed in other states,” she said.

Additionally, library systems do not have the resources to handle an influx of challenges to their materials, said Nathan Hough, a board member with the Friends of the Garland County Library System.

“They’re too busy providing tax services [and] community meeting spaces,” Hough said. “They’re providing resources to the homeless community so they can get the things that they need. They also provide books, but that is a very small portion of what libraries exist to do.”

Power and access

Sullivan said Senate Bill 81 would give parents more of a say in what their children read. Some of the seven witnesses for the bill, including Gloria Mortin, agreed.

Mortin represents the Washington County chapter of the conservative group Moms for Liberty. She supported the bill before the Senate Judiciary Committee in February and cited both fiction and nonfiction books — some of which had sexually explicit passages — about LGBTQ people as examples of books she said should not be in school libraries.

She repeated Tuesday that she does not believe sexual content should be accessible to children of any age.

“Those opposing this lower standard of literature, such as myself, are called book-banners as well as other names when in fact we are asking for school districts to provide age-appropriate materials for students,” Mortin said.

Christina Smith, however, said books containing sexual content can be necessary educational tools. She said existing forms of sex education “have unfortunately failed the kids of Arkansas,” based on her experience as a Cabot High School graduate.

“The ‘sex education’ that we received was signing a certificate saying we wouldn’t have sex until marriage,” said Smith, the vice president of the Young Democrats at Arkansas State University.

Dean MacDonald, also an ASU student, challenged the “parental empowerment” claim from supporters of the bill. The bill only empowers parents who do not accept LGBTQ people, he said.

“Are you going to empower the parents who want their queer kids to be loved and accepted?” MacDonald said. “Are you going to empower the parents who want their children to not be ostracized and bullied by their society?”

We already have too many students in Arkansas reading below grade level. How can we have a literate society if students are limited to reading what others think is appropriate?

– Leslie Switzer, Crossett School District librarian

Brooks refuted the claim from supporters of the bill that elementary schoolers have unfettered access to books with sexual content.

“If a five-year-old walks up to the circulation desk with a steamy Harlequin romance, the first thing that librarian’s going to do is say, ‘Where are your parents?’ and not check out that book to that child,” Brooks said.

Scott Gray of the Saline County Republican Committee disagreed. He said he sent his 9-year-old son into the children’s section at the Mabel Boswell Memorial Library “to look for inappropriate books,” and the search yielded books about “changing your gender” and “how to be woke.”

“The librarians of today are no longer our friends and neighbors,” Gray said. “They’re imported from blue states and liberal areas.”

John McGraw said he received his first library card in the Faulkner County Library System. He is now the system’s executive director, so he is “not an imported librarian,” he noted.

“My books have limits, and they are the book covers,” McGraw said. “My children have limits, and they are the parents. My library has limits, and that’s the First Amendment.”

He and Tien Estell, ​​advocacy and resource organizer for Intransitive Arkansas, both said limits on available content do not stop people from existing.

“I was raised in Arkansas during the pre-internet time, and I know a lot of y’all in this room can relate to that,” Estell said. “… I wish that I had access to stories that mirrored my own [at the time], but trans and queer authors were not on the shelves, and yet here I am, a full-grown trans and queer Arkansan sitting before you.”

Legislators’ discussion

McGraw said he has received “letters from distant corners of the state” asking him to remove books that are not even available at Faulkner County libraries.

Similarly, Rep. Andrew Collins (D-Little Rock) said Senate Bill 81 would not stop people from challenging material in libraries outside their own communities, even though the definition of obscenity includes the phrase “contemporary community standards.”

Collins also said making legislative bodies, like quorum courts and city councils, responsible for judicial decisions about obscenity might conflict with the separation of powers between branches of government.

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

Sullivan said decisions about obscene material are entirely up to the courts, while whether that material is available or not should be up to elected legislative bodies.

“Eventually it’s going to fall on the elected officials of that community to impose what they were elected for, to protect the standards in their community,” Sullivan said.

He criticized the witnesses against the bill for not citing specific portions of the text of the bill in their opposition.

Rep. Ashley Hudson (D-Little Rock) agreed with several witnesses that the bill would lead to the challenging and removal of books by non-white and LGBTQ authors, even though the bill itself did not single them out.

The bill does say that materials “shall not be withdrawn solely for the viewpoints expressed within” them.

Hudson said the legislation would not prevent this from happening since it could be used with the intent to discriminate.

“[That’s] the reason that viewpoint discrimination is so sneaky and the reason that we have reams and reams of cases about it,” Hudson said.

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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.