New Laws Make Banned Books a Crime
Librarians and educators may be targeted for prosecution if they distribute “offensive” materials.
In December 2022, Pen America released its list of the most banned books in America. Gender Queer: A Memoir by Maia Kobabe was number one, while All Boys Aren’t Blue by George M. Johnson came in second—ignominious honors for two commercially and critically acclaimed books.
Now, opponents of such titles don’t want them just banned. In some states, it’s now a criminal act to even have them on the shelves.
In Missouri, SB 775 made it illegal for public and private schools to have books containing “sexually explicit material.” Violators, including librarians, found guilty can be punished by up to a $2,000 fine or up to a year in jail.
It’s just one of three new laws attempting to criminalize libraries and educational institutions by redefining obscenity, according to a new policy brief from the EveryLibrary Institute.
Obscenity laws are not new. They’ve long been part of the federal criminal code “concerned with prohibiting lewd, filthy, or disgusting words or pictures.” At the same time, states have in place additional obscenity statutes designed to protect minors from harmful content. The current framework for these laws has been in place since the early 1960s, along with a crucial stipulation: Most states have agreed that educational and scientific settings are exempt from prosecution.
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In fact, all but six states offer some type of exemption, including for schools and museums, while thirty-one have a specific exemption for libraries. But the 2021–2022 state legislative sessions saw “an alarming and unprecedented increase in the number of bills that would remove librarians, educators, museum professionals, and other bona fide professions from exemptions from prosecution.”
“The effort to criminalize bona fide professions is happening alongside a movement to redefine what content of books, e-books, and materials is considered obscene,” writes EveryLibrary founder John Chrastka in the brief. He says the new legislation is “intended to make the normal practices of education — including health and sexuality instruction, librarianship, and the circulation of books with information about sex or sexual themes — subject to prosecution under obscenity laws.”
In addition to the law in Missouri, two other laws show the risks that lie ahead. Oklahoma passed HB 3702 (2022), which for the first time, specifically defines what professions are now eligible for criminal prosecution in the state, including “employees of school districts, charter schools, virtual charter schools, state agencies, public libraries, and universities.” Tennessee passed HB 2454 (2021), redefining what materials are considered obscene and providing penalties for distribution.
And it could have been worse. EveryLibrary tracked six other bills during the 2021–2022 session that would have redefined state obscenity or “harmful to minors” laws and directly impacted librarians and educators, including HB 0666 in Idaho, HB 1097 in Indiana, and HF 2176 in Iowa.
Although those efforts failed or died in their respective states, EveryLibrary anticipates renewed efforts during the 2023–2024 session, not to mention other activist legislatures who will be inspired by the success in Oklahoma, Tennessee, and Missouri.
These bills represent a direct attack on public library workers and teachers at every level of the education system, exposing them to “new and pernicious workplace liabilities.” But even more dangerous, they represent a movement to “radically roll back gains in civil society and education settings for LGBTQ people” by marginalizing and re-criminalizing homosexuality, sexual freedom, and the trans community.
It’s why efforts to ban books like Gender Queer and All Boys Aren’t Blue have been a warning sign. These aren’t books that are being targeted for obscenity or pornography. It’s because they affirm the existence of non-heteronormative sexualities or gender identities, an idea that has long been seen as immoral among a certain group of people in this country.
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Library advocates can be bolstered by the fact that over 90 percent of voters oppose book bans and censorship. While would-be censors and activists look for new legal avenues to advance their agenda, library advocates must also find new ways to fight back. The brief recommends six potential constituents libraries and librarians can forge coalitions with, including:
- Elected city and county officials, boards, and administrators concerned with the cost of liability, insurance, and risk management.
- Unions and professional associations concerned with safeguarding the future of public sector work.
- LGBTQ+ stakeholders and allies concerned with the civil rights and dignity of individuals and families.
- Good government and free expression stakeholders interested in limiting overreach.
- Separation of church and state groups who are concerned when religion and private morality intrude on the public sector.
- Academics and the publishing community who might be impinged by obscenity allegations.
Read the full brief “Opposing Attempts to Criminalize Librarianship through State Obscenity Laws” from the EveryLibrary Institute and learn more about proposed legislation targeting libraries and the attempts to prosecute librarians.
Visit www.everylibrary.org to learn more about our work on behalf of libraries.
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