The Arkansas Senate Judiciary Committee approved a bill on Monday to create a process that would hold municipal or school library staff criminally liable for furnishing or distributing items deemed “obscene” to minors. The bill now goes to the full Arkansas Senate for approval.
Republican State Senator Dan Sullivan, the sponsor of the legislation, said this bill seeks to codify a system that protects children from receiving items deemed “harmful” from school and public libraries.
Critics of the bill have raised concerns about the bill violating freedom of speech and the first amendment of the U.S. constitution.
Items considered to be harmful to minors, are defined by the bill and Arkansas code, to mean a “material or performance that depicts or describes nudity, sexual conduct, sexual excitement or sadomasochistic abuse.”
Currently, under Arkansas law, librarians are exempt from criminal punishment for distributing material deemed “harmful to minors.” If the bill is signed it to law, they would no longer be exempt and could be held criminally liable.
A spokesperson with the Saline County Library responded to the proposed legislation.
"As libraries, we don't own judicially recognized obscene materials. We also respect the First Amendment, allowing parents the freedom to choose what is appropriate for their children to checkout instead of other parents or even librarians. That's why we encourage parents and guardians to have talks often with their children about what they are reading and set their own limits on what can or cannot be checked out by going with them to the library whenever they can," said Community Engagement Manager Kari Lapp.
The bill states that a person who knowingly distributes an item with any obscene printed or written material, to a minor, could be convicted of a Class D felony.
The proposed law would create an appeals process for individual members of the public to challenge items in public and school libraries. If an item is challenged, the law would require schools and libraries to form a committee to review the material and decide. The complaint would then either go to the school board or local elected officials to make a final determination on whether to remove the item from libraries. The bill requires the meetings where these determinations are made to be held in public.
Sullivan said the purpose of this process is to allow communities to decide on these issues at the local level, leaving the power to remove books and other material from public libraries to elected officials.
Democratic State Senator Clark Tucker asked Sullivan what criteria or standards would be used to determine if the material should be removed.
“It appears to me, based on the language in the bill, that they could use virtually any criteria they want to determine whether to remove material,” said Tucker.
“Correct,” replied Sullivan.
Tucker referred to the “Miller test” which is a test created by the United States Supreme Court to determine whether speech or expression should be labeled obscene, and therefore not be protected by the first amendment. Tucker pointed out that the Miller test is not included anywhere in the proposed law.
Sullivan said he expects libraries to have their own policies and that he does not want to “micro-manage libraries”. Several public attendees audibly laughed after Sullivan’s comment about not wanting to micromanage libraries.
Chairman of the committee Republican Senator Gary Stubblefield responded to the eruption of laughter and said “we’re holding a meeting and if anybody disrupts this meeting, trust me, I will have you removed.”
Sullivan said parents and many others have questions about materials available in the public library and want to give them the ability to appeal those items being furnished in public libraries.
Tucker also raised concerns about a section of the bill that states “material being challenged shall not be withdrawn solely for the viewpoints expressed within the material.” He said he read the word “solely” being included means that materials could be excluded based on the viewpoint within it if there is another factor to consider as well.
Sullivan says he believes there a lot of attorneys who disagree with Tucker. Tucker asked if Sullivan would be willing to remove the word solely from the text and Sullivan said he would not.
Republican State Senator Alan Clark, asked Sullivan what brought on the need for this bill and Sullivan referenced complaints he has received from individuals about the material being furnished in public libraries.
Before the public was allowed to speak in the hearing, Republican Senate President Pro Tempore Bart Hester made a motion to limit debate to one minute per speaker which was approved.
Adam Webb of the Garland County Library said while the amendments help, he said he still has issues as far as the separation of powers and constitutional issues in the bill.
Clark asked Webb what his biggest objection is.
“There has been no fiscal impact statement on how much these challenges are going to cost our cities and counties. There is no stipulation in the bill that a person has to have standing to challenge books,” said Webb.
Webb said the bill had no cap on how many books can be challenged a time and that this could overwhelm local governments and library staffs.
