A bill removing affirmative defenses for librarians accused of distributing obscene materials to minors advances out of committee.
Proponents call the bill a win for protecting children. Opponents say it could lead to imprisoning librarians.
In a famous 1964 US Supreme Court case, Justice Potter Stewart defined obscenity saying, “I know it when I see it.”
Rep. Bethany Soye – HB 1239’s prime sponsor – employed a similar approach in the Senate Judiciary Committee, providing excerpts from books that contain what she calls obscene, pornographic material.
Doing so sparked heated debate in committee on both sides about who should be accountable for children who can access such books in libraries.
Under current law if an individual gives a child obscene material, that’s considered a crime. That’s not the case for libraries and librarians due to legal protections. She said the law should be consistent for everybody involved with children.
“Well the parents have tried to be involved. They’ve tried to go through the process and it hasn’t worked. And I stated, you know, if they want to give their kid whatever they want at home that’s fine," Soye said. "But if they give obscene material to someone else’s children it’s a crime under current law. And these are publicly funded institutions that are entrusted with the care of our children, so they need to be held accountable."
Sen. David Wheeler was one of two to vote against the bill in the Senate Judiciary Committee. He said although he understands frustrations, this bill isn’t the way.
“I think the frustration comes in the fact that [parents] went through the process and then someone disagreed with them, or that the decision they got wasn’t the decision they wanted," Wheeler said. "And so, they come to the legislature and ask us to pass a bill like this, to remove protections from librarians hoping that somehow the librarians will feel more intimidated into siding with those parents who are objecting. And that’s what I don’t want to see happen."
He added that Soye’s examples are eye-catching, but regardless, that burden shouldn’t fall on librarians.
“We can all have disagreements over what is and is not appropriate, but what crosses a criminal line is a difficult question sometimes," Wheeler said. "And I don’t want librarians making decisions based upon those types of threats. Instead, we should let the boards that oversee them make those decisions."
Soye disagreed, saying of the 12 states that have similar legislation, none are trying to “throw librarians in prison” and that South Dakota would be no different.
HB 1239 advances to the Senate floor after a 5-2 vote.
