Arkansas House Approves Bill to Hold Libraries Accountable for ‘Obscene’ Material

The bill would remove schools and public libraries from the part of Arkansas law that exempts them from prosecution

Rep. DeAnnVaught (R-Horatio) speaks against Senate Bill 81 on the House floor March 15, 2023. (Screenshot)

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The Arkansas House approved a proposed law on Wednesday that would open the door to criminal liability for the distribution of “obscene” content by school and public libraries, despite bipartisan opposition.

Seven Republicans joined the 18 House Democrats in voting against Senate Bill 81, including Rep. DeAnn Vaught (R-Horatio), who called the bill “government overreach.”

“I think we might have lost our way down here somewhat,” Vaught said in a lengthy speech on the House floor. “Republicans are supposed to be about local control, and yet here we are again, taking local control away from our counties and cities because of a few bad actors.”

Senate Bill 81 would add the loaning of library materials to the statute governing the possession and distribution of obscene material. Arkansas’ definition of obscenity is “that to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest,” with prurient meaning overtly sexual.

The bill would remove schools and public libraries from the part of Arkansas law that exempts them from prosecution “for disseminating a writing, film, slide, drawing, or other visual reproduction that is claimed to be obscene.”

The bill is one of several introduced this year by Republicans with the stated intent of protecting children from sexual content. Other such bills include proposed restrictions on drag performances and which bathrooms transgender adults can use, as well as requiring pornography websites to verify users’ ages.

The bill’s sponsors, Sen. Dan Sullivan (R-Jonesboro) and Rep. Justin Gonzales (R-Okolona), have repeatedly said the bill is simply a means of allowing parents more control over what their children read and would not result in the banning of books.

Vaught agreed that children should be protected from inappropriate material and that parents have the right to restrict what their children read, but she said that control should not extend to other children or be exercised by elected officials.

“I actually didn’t even let my children read Harry Potter when they were in school, but I would have never gone to the school and challenged that book, even though I didn’t believe in it,” she said.

She also said children might have access to inappropriate content via cell phones rather than library books.

“I guess the next step is for us to tell parents that they can’t buy phones for their children until they’re 18, because just in case you didn’t know, they can search anything and everything on those things today,” Vaught said. “Do I think that is good? No, of course I don’t, but we can’t regulate everything in the lives of Arkansans.”

The bill passed with 56 votes from House Republicans, while 11 did not vote and eight voted present.

The House Judiciary Committee rejected the bill March 7 with a split voice vote after three hours of discussion and testimony. The committee approved the bill Thursday with another split voice vote after adopting an amendment to the text that replaced the word “removal” with “relocation” several times.

Senate Bill 81 will return to the Senate Judiciary Committee, which in February approved the version of the bill that the House committee rejected. The full Senate will take up the amended bill if it passes the committee.

Proposed challenge policy

The proposed law would allow people to “challenge the appropriateness” of school or public libraries’ offerings and have them reviewed by a committee of five to seven people selected by school principals or head librarians. The committee would vote on whether to remove the material after hearing the complainant’s case in a public meeting, and a complainant may appeal the committee’s decision if the majority votes no.

Appeals at school libraries would go to the school board for a final decision, and appeals at public libraries would go to the county judge or the county quorum court.

Employees of public or school libraries that “knowingly” distribute obscene material or inform others of how to obtain it would risk conviction of a Class D felony, the bill states. Knowingly possessing obscene material would risk conviction of a Class A misdemeanor.

Gonzales told the House that the bill sets a high bar for potential criminal charges and that people should not worry about local librarians’ risk of imprisonment.

“That librarian would have to know the material, know what’s in the book, know that it had been declared obscene — and in that case, judicially declared to be obscene, so you or I don’t get to make that decision,” Gonzales said. “…The librarian would have to know that and then knowingly provide it to a child, and I would say if they’re doing that, then they probably should go to prison.”

Republicans are supposed to be about local control, and yet here we are again, taking local control away from our counties and cities because of a few bad actors.

Rep. DeAnn Vaught (R-Horatio), speaking against Senate Bill 81

House Judiciary Committee members at both meetings last week said that legislative bodies such as school boards and county quorum courts should not be tasked with judicial decisions.

Libraries already have processes in place to vet the materials on the shelves and handle challenges to those materials from parents, several witnesses said at the March 7 meeting.

Supporters of the bill have said sexual material is too easily accessible in libraries to children as young as 5 years old.

However, Brittani Brooks, a librarian at Pulaski Heights Middle School in Little Rock, said on March 7 that librarians know better than to check out “a steamy Harlequin romance” to a young child.

Several House members asked Gonzales why the proposed policy is necessary, given libraries’ existing policies and the state’s existing obscenity laws.

Gonzales said decisions about whether materials should be allowed in libraries should be made publicly, which the bill would require. He also said he could not “name specific cases” of Arkansas librarians knowingly distributing harmful material to minors but wanted the policy to be in place proactively.

“I don’t want to wait until harmful material or obscene material is being provided in my district,” Gonzales said.

Content, choice and control

The text of Senate Bill 81 states that library materials “shall not be withdrawn solely for the viewpoints expressed within” them and that anything challenged under the proposed law “shall be reviewed in its entirety and shall not have selected portions taken out of context.”

Vaught said the bill has “several gray areas that could be left up to interpretation” and might open the door to books being challenged just because someone disagrees with the content within them, not because they violate obscenity laws.

Rep. Ashley Hudson (D-Little Rock), a member of the House Judiciary Committee, made a similar comment March 7. She and several witnesses against the bill said books by non-white and LGBTQ authors could be disproportionately challenged even though the bill itself does not single them out.

Senate Minority Whip Linda Chesterfield (D-Little Rock) said on the Senate floor last month that she was concerned about sexual content in the Bible, specifically the Song of Solomon, being challenged. Vaught repeated this concern on the House floor and said the book of Ezekiel is also sexually explicit.

“If [these scenes] were in any other book, I think it would be challenged,” Vaught said.

Gonzales said the Bible “taken as a whole” is not sexually explicit, so it would survive a challenge if there is one.

Even so, if a court in one part of Arkansas rules that a book is obscene, it would have to be removed from all of the state’s libraries, bookstores and homes due to the way obscenity law is written, Vaught said.

She referenced the state’s recent education overhaul law that created a new school voucher program, lauded by Republicans as allowing parents a choice in which schools their children attend.

“Either we are for parents to have choices and freedoms, and for free speech and dialogue, or we aren’t, but we can’t continue to swing that pendulum week after week on this floor,” Vaught said.

Some House Republicans spoke for the bill and disagreed with some of Vaught’s points. Rep. Stephen Meeks (R-Greenbrier) called Senate Bill 81 “the quintessential local control bill.”

“Elected representatives will have the final say,” he said. “They will be the final judge of the values of that community, not an unelected library board.”

Rep. Mary Bentley (R-Perryville), a co-sponsor of the bill, said the policy is necessary as part of an ongoing “culture war” that threatens children’s safety.

“I wish we didn’t have to do this bill, [but] I wish to goodness 5-year-olds weren’t shown pornography,” she said.

Bentley has sponsored other bills this year with the stated purpose of protecting children’s innocence, including the bill that initially sought to restrict drag performances and one that allows medical malpractice lawsuits against doctors who provide gender-affirming care to transgender minors. Both bills have been signed into law.

School bathroom bill

Bentley is also the primary sponsor of House Bill 1156, which the House sent to Gov. Sarah Huckabee Sanders’ desk Wednesday.

The bill would restrict students’ use of multiple-occupancy bathrooms, locker rooms and sleeping arrangements on overnight trips based on their gender assigned at birth. Bentley has repeatedly said the policy, which is based on one in the Conway School District, should protect all students’ privacy.

House Bill 1156 passed the House Education Committee on Tuesday with no discussion or testimony. The same committee previously heard and passed the bill in January.

The Senate approved the bill with a party-line vote on Monday, nearly a month after it was pulled from the floor to be amended on a technicality. The language pertaining to overnight trips originally stated that a student “is required to share sleeping quarters with a member of the same sex,” and the amendment clarified that students can stay in rooms by themselves.

Similarly, the bill requires schools to “provide a reasonable accommodation” to anyone “unwilling or unable to use a multiple occupancy restroom or changing area” based on their biological sex, such as a single-occupancy gender-neutral restroom.

Sen. Clarke Tucker (D-Little Rock) said Monday that this provision is reminiscent of “separate but equal,” the language legalizing racial segregation that led to the landmark 1954 U.S. Supreme Court decision, Brown v. Board of Education, that began the dismantling of segregated schools and fueled the Civil Rights Movement of the 1960s.

Opponents of the proposed policy have said it will make transgender youth more vulnerable to bullying, harassment and violence. They have also said schools might not have the resources to add single-occupancy restrooms to their campuses if they do not already have them.

Kaymo Mainard O’Connell, a transgender 16-year-old, attends a school in Little Rock that has only one single-occupancy restroom, and it is only accessible with permission from the school nurse.

“There are too many trans, gender-nonconforming and intersex people at my school to use that one bathroom,” Kaymo told the Senate Education Committee last week while testifying against House Bill 1156.

One House Democrat, Rep. Milton Nicks Jr. of Marion, voted with 76 House Republicans to send the bill to Sanders’ desk. Six Republicans and two Democrats did not vote, while the remaining 15 Democrats voted no.

Sanders plans to sign the bill, her spokeswoman Alexa Henning said in an email.

“The Governor believes our schools are no place for the radical left’s woke agenda and would sign a law that focuses on protecting and educating our kids, not indoctrinating them,” Henning said.

Arkansas Advocate is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Arkansas Advocate maintains editorial independence. Contact Editor Sonny Albarado for questions: info@arkansasadvocate.com. Follow Arkansas Advocate on Facebook and Twitter.

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