Idaho library bill addressing materials deemed 'harmful to minors' advances despite opposition

Mar. 12—BOISE — A third library bill has been introduced in the Idaho Legislature this session; it passed Monday after hearing overwhelming opposition from those who signed up to testify.

The House State Affairs Committee voted on party lines to send a new version of HB 384 to the floor on the second reading calendar. The bill would require school and library districts to have a challenge form for materials deemed "harmful to minors" that would allow individuals to sue library or school districts that don't move the material.

Bill sponsor Rep. Jaron Crane, R-Nampa, replaced his previous legislation that had been introduced and passed out of the committee earlier this year.

Crane also worked with Sen. Geoff Schroeder, R-Mountain Home, on SB 1289 that would have put in place a public hearing process on challenges to materials deemed harmful, which cites Idaho code on obscenity. The Senate narrowly defeated SB 1329.

In the new bill, there is a requirement to submit a form that cites Idaho obscenity code to request relocation of material that depicts nudity, sexual conduct or sadomasochistic abuse that is "harmful to minors." If the material hasn't been moved within 30 days, the person may sue the district.

Crane said the bill wouldn't preclude families from having conversations with their districts about the location of certain books or other materials.

He said if there was already a conversation and form submitted and the library declined to move a book, "it gives you, 'you're going to need to move that because I'm a taxpayer too, and let's get it put in a different section,' and that's what it does."

There is no process outlined in the bill for reviewing the form or what happens if the library determines that material doesn't meet the definition in code and chooses not to move the material other than the possibility of a lawsuit.

Crane said the review and hearing process that had been in SB 1289, which was based on planning and zoning hearing processes, had been considered too arduous.

There was about an hour of testimony Monday, and everyone who spoke was opposed to the bill. The sign-in sheet, which allows the public to indicate if they support or oppose legislation even if they don't want to speak on it, included 241 people signed up on the bill and, of those, 16 were in support.

Those who opposed the bill said it was unnecessary and would promote litigation even if challenged books don't meet what's known as the Miller Test, which is established in case law as a way to determine if materials are obscene and harmful to minors, because people can still sue if the district doesn't move or remove a challenged book regardless of the reasoning for not relocating it.

The bill states that public libraries and private and public school libraries cannot make available to minors under 18 any material that depicts "nudity, sexual conduct, or sado-masochistic abuse that is harmful to minors" or "any other material harmful to minors."

Some said that none of the titles on lists of challenged books in Idaho libraries from 2022 or 2023, which are published on the Idaho Library Association's website, would fall under the obscenity laws. Book titles include "Beloved" by Toni Morrison, the sex education book "How Do You Make a Baby?" "The Handmaid's Tale" and "The Absolutely True Diary of a Part-Time Indian" by Sherman Alexie.

Testifiers argued libraries already have a book challenge review process and the legislation wasn't a worthy use of the Legislature's time.

"While I appreciate the desire to protect children, this bill is both unnecessary and, frankly, on a practical basis, it's totally unworkable," said Ron Pisaneschi, who is a Boise library board trustee.

There were also concerns about the existing definition of "harmful to minors" in Idaho Code section 18-1514, which was passed into law in 1972 and includes "any act" of homosexuality in the definition of sexual conduct.

A 16-year-old high school sophomore spoke in opposition to the bill and said the majority of Idahoans don't support this type of legislation.

Rep. Julianne Young, R-Blackfoot, asked the student if her position was that "the majority of Idahoans support providing sexually explicit content to minors."

The student responded that the definition may lead to disagreement over what falls under the definition of sexually explicit, and some may interpret it to mean that any books featuring gay characters would be considered harmful.

Young asked several of the testifiers if they thought materials that fell under the definition should be prevented from being distributed to minors.

She asked one testifier, citing the definition, "do you think it's appropriate to expose children to this type of material?"

Boise resident Eric Gironda accused Young of asking "gotcha questions," which Young said was not her intention.

"I actually think it's really inappropriate for representatives of the great state of Idaho to ask continual gotcha questions of people who are up here testifying," he responded. "You tend to ask these same kind of questions all the time, and you're trying to get me to say, 'oh yes we can show kids pornographic material all the time.' None of that happens in libraries. None of that happens in schools."

Crane had said repeatedly that the bill isn't designed to ban books; however, some who testified against it argued that requiring challenged materials to be moved to an "adults-only section" would be impossible for some small or school libraries and would mean removal or the threat of civil litigation.

Under the bill, when challenges are successful, libraries and schools are subject to a $250 fine and "actual damages and any other relief available."

Erin Kennedy, of the Idaho Library Association, called this "a bounty" and said it is "meant to force libraries to censor materials to avoid being sued."

Crane said that courts have the authority to throw out frivolous lawsuits, so that shouldn't be a concern under the bill.

He said he thought relocating materials should be something "everybody can agree on," because it doesn't result in the banning of books.

He also noted that earlier versions of the bill would have criminalized librarians for making harmful materials available to patrons under 18.

"Rather than running House Bill 666, where we're criminalizing librarians and putting them in jail for up to a year, which is what we can do, we're not," Crane said. "We're saying we're running a piece of legislation that says the material can be there, it's just going to need to be relocated."

Rep. Todd Achilles, D-Boise, said he had concerns that the portion of the bill that includes penalties did not explicitly reference the entire Miller Test, including a portion that states materials wouldn't be considered harmful if "when considered as a whole, and in the context in which it is used, possess serious literary, artistic, political or scientific value."

Rep. John Gannon, D-Boise, had concerns that the bill applied to private school libraries. Crane said a private school superintendent in his district was in favor of the legislation, but Gannon said he still wasn't sure it was allowed.

Achilles and Gannon were the only no votes on sending the floor to the full House.

Guido covers Idaho politics for the Lewiston Tribune, Moscow-Pullman Daily News and Idaho Press of Nampa. She may be contacted at lguido@idahopress.com and can be found on X, formerly Twitter, @EyeOnBoiseGuido.