Back in October 2021, a special prosecutor declined to pursue criminal charges against the library staff at the Campbell County Public Library in Gillette, Wyoming. Community members filed a criminal complaint alleging the library committed a crime by “disseminating obscene material to minors,” via LGBTQIA-related materials present in the library collection. While librarians could breathe a sigh of relief after the case was thrown out, we may have to brace for new laws aiming to remove certain legal protections for libraries and librarians. As of February 9 2022, two such attempts are Indiana Senate Bill 17 and Iowa House File 2176. While these are only two states and the bills have differences between them, they should not be taken lightly following the coordinated effort that started in 2021 to pass near-identical state laws targeting school curriculum. These bills are closely related to widespread book challenges occurring at schools and public libraries across the nation, with people trying to remove books that address certain topics relating to gender, sexuality, and race from library collections. In many cases there is already a clear process for reconsidering materials in a collection, so how do legal defenses play a role in this and what do the bills change?
Indiana Senate Bill 17 relates to Indiana Code 35-49-3-3, “Dissemination of Matter or Conducting Performance Harmful to Minors.” A violation of the code results in a level 6 felony, which can carry a penalty of six months to two and a half years in prison in addition to a fine of up to $10,000. The following section, “Defense to Prosecution for Dissemination of Matter or Conducting Performance Harmful to Minors,” lays out possible defenses to prosecution, including:
- That the matter was disseminated or that the performance was performed for legitimate scientific or educational purposes
- That the matter was disseminated or displayed to or that the performance was performed before the recipient by a bona fide school, museum, or public library that qualifies for certain property tax exemptions under IC 6-1.1-10, or by an employee of such a school, museum, or public library acting within the scope of the employee’s employment
The proposed bill changes the language in those two points, first striking out “or educational” in the first point and modifies the second to state, “…by a bona fide college, university, museum, college library, or university library or by an employee of such a college, university, museum, college library, or university library acting within the scope of the employee’s employment.” Notice that the language has been specified to now leave out K-12 schools/libraries and public libraries from this exemption as well as removing language protecting educational purposes. While proponents of the law indicate this bill is about pornographic material, rampant challenges against books such as Maus or those with LGBTQIA themes suggests that the line won’t be drawn just at pornography. On January 19 2022, the Indiana Senate Committee on Education and Career Development featured testimony of those in support of the bill, who gave examples of “obscene materials.” The archived video can be found in a list here, and discussion of the bill starts at 25:22. First public testimony starts at 48:05, with someone presenting How to be an Antiracist by Ibram X. Kendi as an example of “obscene material,” thus already highlighting the ambiguity of the bill. Other books presented as “obscene” by supporters of the bill were It’s Perfectly Normal by Robie Harris (at ~3:08:27), which addresses topics like puberty and sexual health and George by Alex Gino (at ~3:17:55), which discusses transgender issues. This ambiguity and varying interpretations opens the door to prosecution of librarians. In February, Bartholomew County Library director Jason Hatton said it is “chilling” to think about the notion of jailing a librarian for collecting materials somebody else doesn’t agree with. SB 17 passed in the Indiana State Senate 34-15 on February 1 2022.
Iowa House File 2176 would add a new section to Chapter 728 of the Iowa State Code, which covers obscenity. This new section would be titled, “Dissemination of obscene material to minors by a public or private elementary or secondary school or library or public library.” Teachers and librarians that violate this section would be “guilty of an aggravated misdemeanor for a first offense and a class ‘D’ felony if the person has previously been convicted of a violation of this section.” Each day the code is violated would also constitute separate offenses. In Iowa, an aggravated misdemeanor offense is punishable by up to two years in jail, plus a fine. The bill reaffirms that a parent or guardian may bring a civil suit against an elementary school or public library to determine obscenity, and can be awarded a minimum of $10,000. A civil suit to determine obscenity, however, is optional and “shall not be construed as a prerequisite to criminal prosecution for a violation of this chapter.” Though this allows the most censorius parent to tie up the school board and library in course based on their own interpretation of what is obscene. It also adds that materials labeled as curriculum or approved for an education use are not protected. Similar to how Indiana’s bill modified exemption language, Iowa’s bill changes the following: “Exemptions for public libraries and education institutions.” → “Exemptions for college and university libraries and programs.” It also changes the mention of “education program” to “accredited college or university program,” again leaving K-12 and public libraries open to criminal charges.
What is deeply troubling about these bills is that perhaps to punish librarians, they leapfrog existing laws and processes already in place to address legally obscene for minors and allow parents to raise concerns about books and other resources available to their child while protecting other families’ right to access those books. Most libraries have a clear collection development policy and/or have something along the lines of a “Request for Reconsideration” form. For example, the Indianapolis Public Library system has an easily accessible page outlining their materials selection policy, which also includes a link to their reconsideration form. The issue with these bills is not whether things like legally obscene materials are appropriate for minors. Most people will agree that such materials are not appropriate. The main concern is the fact that people are already applying a loose interpretation of “obscene materials” when challenging various books (just look to the Mississippi mayor who is withholding library funds due to complaints over LGBTQIA-themed material as “inappropriate” for minors). If this trend goes unchecked, laws such as those proposed can be used as weapons against librarians who are simply fulfilling their duty to build a library collection that serves the diverse needs of their communities.
David Sye is a Research and Instruction Librarian at Murray State University in southwestern Kentucky. He is liaison for the History, Political Science & Sociology, and Psychology departments, as well as teaching instruction sessions and credit-bearing courses on information literacy. He holds a BA in History from the University of Illinois at Springfield, in addition to an MA in History and MLIS from Indiana University-Purdue University Indianapolis. Prior to working at Murray State University, he has worked in public libraries and briefly taught middle school social studies.