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House advances bill allowing arrest of librarians

The bill would provide an avenue for librarians to be arrested if someone challenges a book as being “harmful to minors.”

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A bill allowing librarians to be arrested for the content they allow on shelves advanced out of the Alabama House of Representatives Thursday along party lines.

HB385 by Rep. Arnold Mooney, R-Indian Springs, removes the criminal exemption for librarians under Alabama’s Anti-Obscenity Enforcement Act, and a substitute brought by Rep. David Faulkner, R-Homewood, creates a seven-day notice requirement before librarians could be arrested.

Multiple Democrat lawmakers said the substitute simply put “lipstick on a pig.”

“This is a pig; it is a bad bill,” said Rep. Chris England, D-Tuscaloosa.

Faulkner said multiple times that the substitute softened the bill from charging librarians with a felony in the original bill to a misdemeanor in the substitute. While the original bill technically opened up librarians to felony charges, it would only be if the librarians were disseminating “obscene material” to minors—which is a heightened standard above even pornography. Distributing “material harmful to minors” is the portion of the bill that has put librarians at risk, and that violation is already a misdemeanor under current law.

Faulkner said he intended for the substitute to give librarians seven days’ notice to remove the material to avoid an arrest. The added language in Faulkner’s substitute would require a library director or school superintendent to be provided with written notice from an individual that they believe there is material on the shelf violating the law, and a copy of that letter must also be submitted to the local district attorney.

But because the crime is a misdemeanor, England said it would actually be prosecuted in municipalities by city attorneys and arrest warrants would be signed by a warrant clerk.

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“Do you realize one person can go talk to a warrant clerk and tell that warrant clerk that this person has not removed this material in seven days, and do you know they can issue a warrant right on the spot right there, and let you sign it,” England asked. 

Faulkner said there have been discussions of only allowing district attorneys to prosecute these cases, but no such language is in the bill passed by the House on Thursday.

The crux of the bill is changing the definition of “material harmful to minors” by changing the definition of “sexual conduct” to include “any sexual or gender oriented conduct that knowingly exposes minors to persons who are dressed in sexually revealing, exaggerated, or provocative clothing or costumes, or are stripping, or engaged in lewd or lascivious dancing, presentations, or activities in K-12 public schools or public libraries where minors are expected and known to be present without parental presence or consent.”

Much focus has been on removal of the obscenity exemption for libraries, but that is only half the story; it also expands the definition of sexual conduct to include any ‘sexual or gender-oriented material,'” Read Freely Alabama said in a statement Thursday. “This would criminalize such books as ‘Heather Has Two Mommies’ and ‘The Pronoun Book,’ both of which have been targeted in Alabama libraries this year and which have no explicit content. This attempted conflation of LGBTQ-affirming books with obscene material must be the focus of any honest conversation about this blatant government overreach and violation of Alabamians’ rights.”

The definition of sexual conduct is just one part of the definition of what constitutes material harmful to minors—the law still requires that the material “taken as a whole, appeals to the prurient interest of children.” 

In the 1957 U.S. Supreme Court case Roth v. United States, the Court defines “prurient interest” as “a shameful or morbid interest in nudity, sex, or excretion” and “material appealing to prurient interest” as “material having a tendency to excite lustful thoughts.”

Faulkner and Mooney said numerous times on the floor that the U.S. Supreme Court has already decided on what material is “harmful to minors.” The U.S. Supreme Court did uphold a New York law that considers certain works obscene for minors which are not otherwise considered obscene for adults after a man sold two “girlie” magazines to 16-year-olds. The limited scope of that decision does not necessarily give states the right to prohibit whatever content they deem harmful to minors.

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Based on Alabama’s law, even if this bill passes the Senate, a book would need to appeal to the prurient interest of minors when taken as a whole, and would have to be found by “a reasonable person” to lack “serious literary, artistic, political or scientific value for minors.” And simply depicting or describing the sexual conduct would not rise to the definition either; it would only be harmful to minors if  depicted ” in a way which is patently offensive to prevailing standards in the adult community with respect to what is suitable for minors.”

“Under HB385, even with the revised language, public and school librarians could be penalized or even arrested by prosecutors eager to follow the demands of Alabama Republican Chair John Wahl, an Alabama Public Library Service Board member, who’s willing to jail librarians for having books he considers unacceptable,” said Craig Scott, newly installed president of the Alabama Library Association. “This bill is government overreach, robs parents of their rights, and would have a chilling effect on free speech by potentially incarcerating librarians because particular books are available, including even the Bible. “

The bill now moves forward to the Senate for consideration with five days remaining in the legislative session.

Jacob Holmes is a reporter at the Alabama Political Reporter. You can reach him at [email protected]

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