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School librarians face a new penalty in the banned-book wars: prison

A librarian returns books to the shelves on Feb. 28, 2023, at a Boise Public Library branch.  (Sarah A. Miller/Idaho Statesman)
By Hannah Natanson Washington Post

Librarians could face years of imprisonment and tens of thousands of dollars in fines for providing sexually explicit, obscene or “harmful” books to children under new state laws that permit criminal prosecution of school and library personnel.

At least seven states have passed such laws in the last two years, according to a Washington Post analysis, six of them in the past two months – although governors of Idaho and North Dakota vetoed the legislation. Another dozen states considered more than 20 similar bills this year, half of which are likely to come up again in 2024, the Post found.

Some of the laws impose severe penalties on librarians, who until now were exempted in almost every state from prosecution over obscene material – a carve-out meant to permit accurate lessons in topics such as sex education. All but one of the new laws target schools, while some also target the staff of public libraries and one affects book vendors.

One example is an Arkansas measure that says school and public librarians, as well as teachers, can be imprisoned for up to six years or fined $10,000 if they distribute obscene or harmful texts. It takes effect Aug. 1.

Library and free speech advocates were unaware of any instances so far in which a school staffer had been charged under the new laws. Most of the laws do not spell out precisely who will decide what counts as obscene but suggest the judgment should come from the courts.

Some educators and activists say the laws will forge a climate of fear among school librarians, spurring the censorship of books by and about LGBTQ individuals – even as the nation already faces a historic onslaught of challenges to books in those categories.

“It will make sure the only literature students are exposed to fits into a narrow scope of what some people want the world to look like,” said Keith Gambill, president of the teachers union in Indiana, one of the states that adopted obscenity laws. “This is my 37th year in education. I’ve never seen anything like this. … We are entering a very frightening period.”

Those on the political right, however, contend that the legislation is necessary to prevent children from exposure to pornographic and sexual content that will harm their mental health and warp their development. In every case but one, a bipartisan bill in Missouri, Republican lawmakers or Republican-dominated committees introduced the laws.

School employees should be held accountable, said Idaho state Rep. Jaron Crane (R), who co-sponsored a bill this year that would have allowed parents to sue districts for $2,500 over sexually explicit material. His bill passed the legislature but was vetoed by Gov. Brad Little (R), who warned that the law would burden libraries financially and have “unintended consequences.” Little did not respond to a request for comment.

Crane wrote in a statement to the Post that the legislature failed to override the governor’s veto by one vote.

“If teachers and librarians are scared to do their jobs,” Crane added, “that confirms the fact that there is indeed material in their libraries that is harmful to minors.”

In addition to Idaho and Arkansas, Indiana, Missouri, North Dakota and Oklahoma enacted laws mandating fines or imprisonment, or both, for school employees and librarians. Tennessee has passed two measures, one that targets schools and another that targets book publishers or vendors selling to schools.

The consequences vary slightly between states: The Indiana law, signed by the governor in May, says school staffers can be forced to pay up to $10,000 or serve 21/2 years in prison for providing obscene or harmful material to minors. A 2022 Oklahoma law says school employees and public library staffers can be fined up to $20,000 or serve up to 10 years in prison for facilitating “indecent exposure to obscene material or child pornography.” One of the Tennessee laws, passed this year, says book publishers, distributors and sellers can face up to six years in prison and up to $103,000 in fines for providing obscene matter to K-12 schools.

Library administrators across the country say the flood of obscenity laws are already instilling terror in librarians.

In Arkansas, a dozen librarians have sought help from Nate Coulter, executive director of the Central Arkansas Library System, worried they will be prosecuted once their state’s law takes effect this summer. Coulter said he promised legal support. In Indiana, school librarians have begun removing LGBTQ books with sexual content – sometimes of their own volition, sometimes at the direction of their principals – according to Chad Heck of the Indiana Library Federation, which advocates for libraries in the state.

And in Idaho, the mere introduction of legislation had an immediate effect, said Lance McGrath, president of the Idaho Library Association. A day after Crane put forth an early version of his bill, the Idaho Association of School Administrators circulated a list of 25 titles lawmakers proposing library-related bills were most likely to find objectionable, including “This Book is Gay” and “Beyond Magenta: Transgender Teens Speak Out.” The Kuna School District quickly designated all these as “behind the shelf” books, meaning that if a school possessed them, students must obtain a signed permission slip from their parents to read them, according to Allison Westfall, a spokeswoman for the district.

“Kuna was walking a fine line between providing access and providing that level of control being sought through the legislation,” McGrath said, speculating that the district withdrew the books in hopes of avoiding controversy and negative attention.

All 50 states maintain obscenity laws, most of which prohibit the distribution of obscene material to minors and impose heavy fines and prison sentences for violations. But the vast majority adopted exemptions for schools, public libraries and museums in the 1960s, 1970s and 1980s to ensure educators could provide full information to children on topics such as biology, health and sex education without facing expensive litigation, according to a research report from the advocacy group EveryLibrary.

Back then, lawmakers took it for granted that schools and libraries were not trying to disseminate “criminally harmful material,” said John Chrastka, executive director of EveryLibrary, which is tracking library obscenity laws.

But that assumption of good intent no longer exists, he said.

“We are, as a country, at a very broken place right now,” he said. “We have a fundamental break in trust between some groups of society and the educational system.”

At the time the exemptions were enacted, legislators probably could not have imagined a book like “Gender Queer” – a memoir about being nonbinary that features oral sex, masturbation and a scene in which an apparently teenager is about to engage in fellatio with an older bearded man – Heck of the Indiana Library Federation said.

“Gender Queer” is a favorite target of conservative politicians and parents who charge that it is inappropriate for children. It was the most challenged book in 2021 and 2022, according to the American Library Association. During a February hearing arguing for his library obscenity law, Indiana state Sen. Jim Tomes (R) cited “Gender Queer” as an illustration of the problem. The text is “something you’d see in an adult bookstore,” said Tomes, who did not respond to a request for comment.

“I just want these away from our kids,” he said. “We’re trying to prevent students from being exposed to books that are absolutely raw pornography.”

Heck, though, said he thinks there is a reason to keep books with sexual content available to children, especially older students.

“Teens are sexual, sexuality is part of their life, and I think it is important that we represent their authentic experience in our collections,” he said. “Sex is part of that, and to censor that message isn’t exposing them to their own reality.”

Some of the library obscenity laws may be vulnerable to legal challenge, said David Hudson, a Belmont University assistant professor who studies constitutional law. The most effective attacks will contend that the laws violate the First Amendment, because they are so broadly worded as to chill free speech, he said.

“What you always worry with ‘obscenity’ and ‘harmful to minors’ type laws is the vague language,” Hudson said. He pointed to “the alarming degree of subjectivity with regard to whether something … is really patently offensive.”

In February, the Missouri ACLU filed suit to overturn the state’s 2022 law establishing that school staffers can be fined up to $2,000 or imprisoned for a year for providing “explicit sexual material” to students. The lawsuit, brought on behalf of the Missouri Association of School Librarians and the Missouri Library Association, alleges a violation of First Amendment rights. Coulter of the Arkansas Central Library System said his organization plans to file a federal lawsuit challenging his state’s law within the month – partly relying on a First Amendment argument.

“There are fundamental defects with these statutes,” Coulter said. “They’re nothing more than a stick, a club that can be used to threaten librarians.”