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State House committee rejects bill that would make librarians criminally liable for distribution of obscene material

by Will Langhorne | March 7, 2023 at 1:06 p.m.
FILE — The main branch of the Central Arkansas Library System in Little Rock is shown in this 2020 file photo. (Arkansas Democrat-Gazette/Thomas Metthe)

A bill intended to make librarians criminally liable for distributing materials deemed obscene by courts failed to advance from a House panel early Tuesday afternoon.

Senate Bill 81 by Sen. Dan Sullivan, R-Jonesboro, failed a tight voice vote in the Judiciary Committee after roughly three hours of discussion and testimony. Rep. Carol Dalby, R-Texarkana, who chairs the committee, gaveled the panel out of session as at least one committee member requested a roll call vote. The panel is scheduled to reconvene later this afternoon.

Sullivan told committee members to beware of misinformation circulating about his bill. Along with addressing criminal liability for librarians, the legislation also aims to standardize the process for challenging the “appropriateness of material” available at public and school libraries.

The measure would not create a list of banned books. A librarian would have to knowingly distribute material deemed obscene by a court before they could be prosecuted under the bill, he said.

“You can’t be held accountable for something you didn’t know,” Sullivan said. “That’s a critical part of the bill.”

While assembling his bill, Sullivan said he spoke with hundreds of librarians and groups, including the Arkansas Library Association and the Arkansas School Boards Association.

Supporters said the measure is needed to protect children from obscene material. Those in favor have said more transparency also is needed when it comes to decisions made by libraries on which books they carry.

Opponents argued the bill would invest legislative bodies with judicial power and disproportionally impact books written by and about LGBTQ people. Critics also raised concerns the bill could lead to libraries and local elected officials being swamped with requests from people outside of their communities to remove books.

Under current law, libraries must have a “written policy for addressing challenged material.” Sullivan’s bill would require libraries to form committees to review objections and decide whether to remove a book from shelves. These committees would be subject to open meeting laws, Sullivan said.

The bill would allow people to appeal decisions made by 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.”

Sullivan noted that local elected officials would not have the authority to determine if the material is obscene. Only a judge could make that determination, he said.

One provision of the bill would allow libraries to disclose confidential library records to the parent or legal guardian of a minor.

Another section of Sullivan’s bill would strike language from law protecting any employee, director, or trustee of a public or school library who is “acting within the scope of his or her regular employment” from prosecution under obscenity laws. Several people noted the measure would retain protection for museum staff who distribute obscene material. Sullivan said constituents were not concerned about museum employees releasing material harmful to children.

The bill would also 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 also could 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 that 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."


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