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Bill removing protection for librarians fails

by Will Langhorne | March 10, 2023 at 12:00 a.m.
Sen. Dan Sullivan (right), R-Jonesboro, and Rep. Justin Gonzales (left), R-Okalona, present SB81, a bill to amend the law concerning libraries and obscene materials, during the House Judiciary Committee meeting on Tuesday, March 7, 2023, at the state Capitol in Little Rock. (Arkansas Democrat-Gazette/Thomas Metthe)

A bill that would strike from state law a defense librarians currently have protecting them from criminal prosecution for distributing obscene material failed to advance from a House panel early Tuesday afternoon.

Senate Bill 81 by Sen. Dan Sullivan, R-Jonesboro, failed in a tight voice vote in the Judiciary Committee after nearly three hours of discussion and testimony. Rep. Carol Dalby, R-Texarkana, who chairs the committee, moved the panel out of session as at least one committee member requested a roll call vote.

After the meeting, Sullivan said he intended to bring the bill back to the committee with an amendment as early as this week. He said details were still under consideration and that he wasn't ready to discuss what the amendment might include.

Along with addressing criminal liability for librarians, the legislation aims to standardize the process for challenging the "appropriateness of material" available at public and school libraries.

Sullivan said the measure would not create a list of banned books and would require a librarian to knowingly distribute material deemed obscene by a court before they could be prosecuted.

"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 is needed when it comes to decisions made by libraries on which books they carry.

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

Rep. Andrew Collins, D-Little Rock, said that even though the legislative bodies wouldn't be determining if material is obscene, the bill would give them judicial power.

"They aren't experts in evaluating individual claims that come up for appeal," he said. "It is a violation of a separation of powers and they're just not prepared for it."

John McGraw, director of the Faulkner County Library, voiced concerns that the appeal process could lead to local governments becoming embroiled in expensive legal fights.

Several librarians who spoke against the bill noted that they were from Arkansas. Some mentioned in their testimony that they would not loan inappropriate books to children or that their libraries did not carry books some parents deemed obscene.

Another section of Sullivan's bill would strike language from the 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 that the measure would retain protection for museum staff members who distribute obscene material.

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

The bill also 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 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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