Committee introduces third version of ‘obscene content’ library bill
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BOISE (Idaho Reports) — The House State Affairs Committee on Monday introduced the third library bill of the year, after another version of the bill died in the Senate by just one vote.
Monday’s bill, sponsored by Rep. Jaron Crane, R-Nampa, is an amended version of H 384, the first library bill introduced in January. Changes to the legislation include implementing parts of the Miller test to help prevent legal challenges.
The U.S. Supreme Court created the Miller test to determine whether speech or expression can be labeled obscene. Obscenity is not protected under the First Amendment of the U.S. Constitution.
Under the bill, content could be deemed harmful to minors when “judged by the average person, applying contemporary community standards.”
The bill does not include a full explanation of the Miller test, but includes a sentence about if the content possesses “serious literary, artistic, political or scientific value.”
The new bill still includes nudity, sexual conduct including masturbation, sexual excitement, and sado-masochistic abuse as factors that could be “patently offensive to prevailing standards in the adult community with respect to what is suitable material for minors.”
Prior to filing a lawsuit, the bill would require a parent or guardian to provide written notice to the school or public library asking them to relocate the material within 30 days to a section designated for adults. If the library fails to relocate the “obscene content,” a lawsuit may be filed for $250, as well as actual damages and any other relief. The bill does not put a cap on how much a person could claim in actual damages, nor does it address legal fees.
The potential lawsuits include both public and private school libraries providing K-12 instruction.
Additionally, a county prosecuting attorney or the state attorney general would have a cause of action option against any library or school in violation.
The committee heard all negative testimony on Monday, with no one speaking in support of the bill. The committee advanced the new bill on a party-line vote, recommending it be sent to the second reading calendar. The means it likely won’t get another hearing with public testimony in the House.
Multiple testifiers argued against the financial toll that lawsuits could put on small libraries.
The bill provides an affirmative defense if a library employee had reason to believe the minor was 18 years old, such as being shown a fake driver’s license.
Lance McGrath, president of the Idaho Library Association, called it a “bill in search of a problem.”
“Idaho libraries, whether school or public, do not provide materials that are harmful to minors. Librarians have earned the public’s trust,” said McGrath. “The private right of action creates a bounty system that will place an incredible financial burden on libraries and open them up to serious actions and potential litigation.”
Rep. Julianne Young, R-Blackfoot, repeatedly asked testifiers if they believed children should be exposed to obscene content.
Bonnie Shuster testified in opposition to the bill, saying it should be a local issue decided by local libraries.
“I believe the problem is more misunderstandings by patrons about what meets the Miller test,” Shuster said in response to Young’s question. “I don’t think anyone wants those materials in their hands.”
Erin Kennedy, a Boise librarian and member of the Idaho Library Association, said the bill calls for relocation of some books to adult-only areas, but school libraries do not have adult sections.
“This bill would require renovations and staff to police certain areas,” Kennedy said.
She said it opens the door for anyone to file a complaint for any reason. She also said it was an attack on parents’ rights to choose what their children read.
“To put it bluntly, this bill is unnecessary. Idaho’s libraries already have processes in place for readers to request reconsideration of materials and these processes work,” Kennedy said. “They already move materials to other sections or remove them entirely if doing so aligns with their policies and First Amendment.”