SD Senate will consider repealing obscenity prosecution protection for librarians
Rep. Bethany Soye, R-Sioux Falls, speaks on the House floor on Jan. 16, 2024. (Makenzie Huber/South Dakota Searchlight)
The decision to keep or repeal a clause in South Dakota law that protects librarians from criminal penalties for the knowing distribution of 'harmful' material to minors is in the hands of the state Senate.
The Senate Judiciary Committee voted 5-2 on Thursday at the Capitol in Pierre to endorse a bill that would change the law.
Disseminating materials harmful to minors is punishable by up to a year in jail and a $2,000 fine. Existing law makes being a public librarian an 'affirmative defense' against prosecution.
Sioux Falls Republican Rep. Bethany Soye is the prime sponsor of House Bill 1239. It would remove the affirmative defense for librarians for distributing the pornographic content Soye alleges is found on public bookshelves across South Dakota. Schools, universities and museums would also lose the defense.
South Dakota House advances bill that lawmaker slams as 'locking up librarians'
She pointed to a book series called 'A Court of Thorns and Roses,' and included excerpts from it and other materials available in public libraries in a document she distributed to senators. Soye said books in the series are available in public libraries in Brookings, Madison, Sioux Falls, Rapid City, Vermillion and Yankton, among others.
Rapid City Republican Sen. Greg Blanc, a pastor, said he hadn't wanted to 'do his homework' by reading the excerpts, and that doing so made him want to 'go home and take a shower.'
'Most taxpayers don't see the necessity of pornography being available in taxpayer funded institutions,' Blanc said.
The bill narrowly cleared the House floor last week after heated debate, during which one opponent decried the proposal as a pathway to 'locking up librarians.'
On Thursday, Soye called that rhetoric overblown. Parents have asked librarians to remove books, but Soye said they haven't listened and need an incentive to take community concerns more seriously.
Twelve states don't have affirmative defense protections for librarians, Soye said, and librarians haven't been locked up in any of them.
'If it had happened, you'd know about it, because it would have been national news,' she said.
Existing state law criminalizes the knowing distribution of obscenity, or possession of obscenity with the intention to distribute it to minors. Soye said librarians would not commit a crime under her bill unless they made an active choice to have obscene material in their collection, keep it on the shelf, and allow kids to check it out.
'No one will accidentally violate this,' Soye said.
Opponents weren't so sure.
'The inherent problem with obscenity testing is that you're going to be making subjective calls,' said Cash Anderson, a lobbyist for the South Dakota Association of Criminal Defense Lawyers.
Legislative committee endorses prosecution of librarians who lend books deemed harmful to children
Obscene material is generally protected for adults by the First Amendment, but the U.S. Supreme Court has ruled that governments can regulate its access by minors.
It created a three-part test in the 1973 case of Miller v. California to determine if something is obscene, and therefore legal to regulate. It must appeal to the prurient interest of the average person, depict sexual conduct in a way that is offensive, and lack serious literary, artistic, political or scientific value.
Sen. Amber Hulse, R-Hot Springs, said literary value is subjective, and debates about it will likely go to court if Soye's bill passes. Hulse said she'd been inundated with emails on the bill, half for it and half against it. She voted to send the bill to the Senate floor so the full body would have a chance to cast a vote on behalf of their constituents, she said.
Sen. David Wheeler, R-Huron, went the other way. He agreed with opponents, who alleged that parents who fail to convince librarians to agree with them on a book's lack of literary virtues are essentially weaponizing the justice system to get their way.
Debates on what is or isn't obscene should happen in public, at the local level, Wheeler said.
'We deal with it through the democratic process,' Wheeler said. 'We don't deal with it through criminal prosecution.'
Sen. Jim Mehlhaff, R-Pierre, said he'd come to the committee hearing prepared to side with the local government officials in his district who'd urged him to say no.
Reading the passages in Soye's handout on books now available in public libraries and testimony from the bill's supporters changed his mind, he said.
'We keep seeing bills like this because libraries are not responsive to parent concerns,' Mehlhaff said.
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