A bill that would strike a defense statute from state law protecting public library staff from criminal liability for distributing obscene material passed a Senate committee Monday.
Senate Bill 81, by Sen. Dan Sullivan, R-Jonesboro, also aims to standardize the process for challenging the "appropriateness of material" available at public and school libraries. The vote in the Committee on Judiciary sends the bill to the full Senate for further consideration.
Before endorsing the bill, the committee approved an amendment to the legislation which Sullivan said was intended to raise the threshold at which a librarian could be accused of violating the law.
All seats open to the public in the committee room were taken by the time the meeting started. Some people who came to testify or watch the meeting had to stand outside the room because of limited space.
In total, 23 people signed up to speak for or against the bill, though not all spoke because of time constraints. Committee members voted to limit each person to one minute of testimony. Lawmakers spent nearly two hours discussing and hearing testimony on the bill.
Supporters of the measure argued it is needed to protect children from obscene material. People who testified in favor of the bill pointed to or read aloud from books they claimed minors should not be able to access at public or school libraries.
Opponents of the bill claimed the measure could invest legislative bodies with judicial power and lead to arbitrary determinations of what material is protected as free speech under the U.S. Constitution. Critics also said it was unclear how the standardized process for challenging material in the bill would fiscally affect cities, counties and school districts.
After meeting with the Arkansas Library Association, the Arkansas School Boards Association and several librarians, Sullivan said he had a bill that "both sides are probably a little unhappy with."
Sullivan noted his bill would not change the definition of obscenity law, only "who is culpable for obscenity."
The bill would remove a provision in current statutes that protects public or school library staff who are "acting within the scope of his or her regular employment" from prosecution under obscenity laws.
Sen. Clarke Tucker, D-Little Rock, asked who would determine if the materials a librarian possessed were obscene.
Sullivan said the responsibility of bringing a case would fall to a prosecutor. A judge would be responsible for determining the case.
Sen. Alan Clark, R-Lonsdale, who generally spoke in favor of the bill, questioned why this section was included in Sullivan's bill. Clark, who is the son of a librarian, said he wasn't opposed to applying obscenity law to everyone but said he felt the provision "clouded" Sullivan's bill.
"Is it really necessary to put that criminal part in the bill?" he asked.
Sullivan said removing the exclusion for librarians was important for disincentivizing the spread of obscene material.
Brittani Brooks, a library media specialist with Pulaski Heights Middle School, spoke against the bill, saying libraries could provide children with access to books that could help them navigate abuse.
Gloria Martin, with Moms for Liberty in Washington County, was in favor of the bill and read several passages from books available to students that she found inappropriate.
A separate section of Sullivan's bill would codify a process public and school libraries would have to follow when a person challenges potentially obscene material held by a library. This provision of the bill includes an appeal process that would allow a person to take their objection to a body of elected officials.
While current state law requires libraries to have a "written policy for addressing challenged material," Sullivan's bill would require libraries to form committees to review objections. These committees would be subject to open meeting laws, Sullivan said.
"They would have to have the meeting in front of anyone that wanted to be there," Sullivan said.
Under the bill, a committee is not allowed to withdraw material from a library "solely for the viewpoints expressed within the material." The committee would have to review the material in its entirety and "shall not have selected portions taken out of context."
Tucker asked if committees would be required to follow any other guidelines when determining if material is obscene. He pointed to the Miller Test, which was established by a U.S. Supreme Court ruling as the primary legal test for deciding if a form of expression is considered obscene.
Sullivan said school districts and public libraries already had policies in place that they would follow.
The bill would allow a person to appeal a decision made by one of these committees to a body of elected officials. In the case of a school library, the superintendent would direct appeals to the school board of directors. For a municipal or public library, the "executive head" of the city or county would present appeals to the "governing body of the county or city."
"The goal again is to let the appeal process end with elected officials, not a bureaucracy or committee," Sullivan said.
Tucker questioned why the appeal process would end with a board of elected officials rather than the courts.
"These are legal tests established by the Supreme Court of the United States to determine whether material is obscene or not," he said.
Garland County Library Director Adam Webb spoke against the bill, saying that having elected officials outside of courts make decisions regarding obscene material could lead to arbitrary decisions on what constitutes protected free speech.
Sullivan said the process outlined by his bill was preferable since it wouldn't lead to legal action against librarians.
Sen. Stephanie Flowers, D-Pine Bluff, said offensive books in libraries may be provided by state agencies and asked why Sullivan did not attempt to regulate selection by state officials.
"I don't think all librarians get to choose what goes in there. That happens up here at the [state] Department of Education," she said. "I don't know how you get to the point where you want to turn back and target the local librarian as opposed to figuring out how these books are stocked in the library."
Sullivan reiterated that his bill would provide a mechanism that would allow people to challenge books they found offensive.
Tucker questioned a final provision of the bill that would allow libraries to disclose confidential library records to the parent or legal guardian of a minor. In cases where a teenager checks out books on child abuse or drug use after being abused or exposed to drugs by their parents, Tucker asked why the library should have to disclose the teenager's library record.
Sullivan said he had yet to hear of a specific instance where this occurred.
Another section of Sullivan's bill would create a "furnishing harmful item to a minor" offense.
Under this provision, a person who knowingly provides a minor with an item that is "harmful to minors" would be guilty of a Class A misdemeanor. A person could also commit this offense by transmitting through direct internet communication an item that is "harmful to minors" to a person they believe to be a minor.
The bill points to existing law which provides an extended definition of the term "harmful to minors."
Among other characteristics, an item that is "harmful to minors" must be found by an "average" adult "applying contemporary community standards" to have a "predominant tendency to appeal to a prurient interest in sex to minors."
An average adult must also find that the item depicts or describes "nudity, sexual conduct, sexual excitement, or sadomasochistic abuse in a manner that is patently offensive to prevailing standards in the adult community with respect to what is suitable for minors."
The material or performance would have to lack "serious literary, scientific, medical, artistic, or political value for minors."