BOISE, Idaho — This article originally appeared in The Idaho Press
The latest effort at regulating pornographic materials in Idaho public and school libraries will move forward.
The overwhelming majority of testifiers at a public hearing Monday opposed SB 1289, many of whom argued it was unnecessary and potentially burdensome for some libraries and school districts. Some of those who testified said they were neutral and appreciated an effort to make a compromise with the librarians and previous proposals.
Sen. Geoff Schroeder, R-Mountain Home, and Rep. Jaron Crane, R-Nampa, sponsored the bill, which outlines a specific process that public and school libraries would need to follow if a book was challenged for violating a section of Idaho code that defines “harmful to minors.”
After these processes have been exhausted, then parents or minors may pursue a civil lawsuit against the library or school district for $250 and other damages.
Crane said he felt the bill addressed Gov. Brad Little’s concerns over last year’s bill, HB 314, which the governor vetoed. Crane said Little wanted to avoid frivolous lawsuits and ensure that no libraries would go bankrupt.
“With the process and the lowering of the damages, we believe we have addressed the governor’s concerns,” Crane said.
HB 314 would have allowed parents of minors to sue for $2,500 as well as other damages awarded by the court. No process with the library or school district would have been required before pursuing the lawsuit.
Under the new legislation, a review committee would need to be formed to review if materials violate a portion of Idaho’s obscenity code, which defines material “harmful to minors" as including “nudity, sexual conduct, sexual excitement, or sado-masochistic abuse” when it “appeals to the prurient interest of minors as judged by the average person, applying contemporary community standards” and when depictions are “patently offensive to prevailing standards in the adult community with respect to what is suitable material for minors.”
This wouldn’t apply to materials that, “when considered as a whole, and in context in which it is used, possess serious literary, artistic, political or scientific value for minors.”
These prongs for determining obscenity are known as the "Miller Test" and are the legal standard established by the Supreme Court.
A public hearing on the challenge would need to be held with published notice a week ahead of time, after which the committee would submit a written decision on the challenged material that cited Idaho code as well as other relevant facts it relied on.
Nearly everyone who spoke Monday during the two-and-a-half-hour hearing opposed the bill. Some opposed it because they didn’t want any legislation on how libraries operate, and others thought it didn’t go far enough.
Many who spoke against the legislation noted that very few people submit formal requests for reconsideration in libraries currently, and argued that the problem isn’t as widespread as it seems.
“Libraries are not dangerous places, unless one fears diversity of thought, the multiplicity of experiences and values, and Idahoans' ability to coexist and thrive together,” said Martha Williams, who works in a library. “... Librarians and their communities can have dialogue without legislation and we are doing this. This bill is not needed by Idahoans, our communities or our libraries.”
Sarah Bettwieser, representing the Idaho Library Association, said the group maintained that the legislation isn’t necessary, because most districts already have a process in place, but it did not oppose it. Other proposals brought forward to regulate “harmful materials" in libraries have been met with strong opposition by the association.
“After years of trying to address this issue, we think this is probably about as good as it’s going to get for all involved,” Bettwieser said.
Some library trustees and employees said they had concerns about the logistical challenges of implementing the law, such as paying for a public hearing notice each time a book is challenged or potentially fielding many challenges from one individual.
Jeff Kohler, a current library trustee for the Meridian Library District, speaking on behalf of himself, said after the past couple of years of “vitriol” in recent public library meetings, he wasn’t sure many people would sign up to be on the review committees required in the legislation.
“These review committees called for in the bill would be best served by thoughtful, methodical individuals who won’t be swayed by emotional public opinion,” Kohler said, “but anyone who's been paying attention to the culture wars surrounding libraries the past few years would think twice before sticking their neck out to get involved in the book review committee required to take public testimony.”
He also had concerns that the process may complicate the legal oversight that already goes into the reconsideration process.
Brian Almon, an Eagle Library Board trustee and former communications manager for the Idaho Freedom Foundation, spoke in favor of the legislation. He likened harmful content to providing cigarettes and alcohol to children.
“There are some things that children can see on their library shelves that I think are just as harmful,” he said.
He said the legislation was a “good start” to ensure the “most heinous examples” are removed.
Idaho Freedom Foundation President Ron Nate spoke in opposition to the bill, arguing it did not do enough for those making the challenge.
He said it created a “complicated and arduous process” for parents who want materials moved. Nate, a former state lawmaker, argued that the group has “stacks" of explicit content found in libraries.
He opposed that there are no provisions or requirement for schools or libraries to preemptively remove materials. He also took issue with the bill only citing part of the law related to “harmful material for minors.”
“If libraries are truly a public good, let’s make sure they are, in fact, good,” Nate said.
Nate had lobbied for the passage of last year’s bill, HB 314, Idaho Secretary of State reports show.
Grace Howat of the Idaho Family Policy Center, which helped draft last year’s library bill, also spoke in opposition to the bill. She expressed concerns it would not function well in practice.
Schroeder said he appreciated the passion from those who opposed the bill in support of their libraries.
“I think we all see that something is necessary, and so I tried to craft something that would do both, would protect our children from pornography in libraries, to the extent it exists, by determining whether or not it exists, and then protecting (libraries) from frivolous or unfounded suits,” he said.
Senate Pro Tempore Chuck Winder, R-Boise, said that when the issue first came up a couple of years ago, he had dismissed it, not thinking it was an issue. He said he changed his mind because a parent showed him a book that their child found in a library.
“From that day on, I went, ‘hmm, I don’t know how big the problem is, but there is somewhat of a problem,’” Winder said.
He underscored that the first proposal in 2022, HB 666, would have created felony punishments that included prison time for librarians who checked out materials considered harmful to minors. Later proposals included steeper monetary rewards for successful civil lawsuits against districts and did not include a process to go through before bringing the civil cause of action.
He said this new proposal was a “pretty reasonable approach.”
Sen. Treg Bert, R-Meridian, said he would support passing the bill out of committee but may change his vote on the floor over “heartburn” on some aspects of the legislation.
He mostly took issue with the civil lawsuit portion of the bill, which has been included in a growing number of bills in recent years.
“I just do not like this policy, period,” Bernt said of the legal enforcement mechanism. “I think it causes far more problems than it solves.”
Senate Minority Leader Melissa Wintrow, D-Boise, and Sen. James Ruchti, D-Pocatello, spoke against the legislation, arguing that it didn’t seem needed.
Ruchti pushed back on the idea that something needed to be legislated on the issue.
“Let’s move on,” Ruchti said, “let’s use the systems we have in place.”
Wintrow cited numbers she received from the library association that show last year, libraries in the state received 15 official complaints for 137 titles. The year before, there were 32 complaints, she said.
“I do think it is a problem that will subside, especially if we stand our ground and we support the libraries and processes that are in place,” Wintrow said.
The Senate State Affairs Committee voted 6-3 to send the bill to the full Senate for a vote.
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