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West Virginia bill could open libraries to felony charges in obscenity law

West Virginia lawmakers are considering opening public and school libraries up to felony charges for the display or dissemination of obscene material.

Librarians are pushing back, questioning how such a policy would be implemented, who would be held accountable and what materials might be under scrutiny.

West Virginia’s obscenity laws have possible punishments of fines up to $25,000 and up to five years imprisonment.

A public hearing on House Bill 4654 is set for 8:30 a.m. Wednesday in the House of Delegates chamber. The House Judiciary Committee has held off on considering the bill until after the public hearing.

Megan Tarbett

“We would like it not to leave the committee,” said Megan Tarbett, director of the Putnam County Library and president of the West Virginia Library Association. “It would be a huge burden to our staff and our community in many ways.”

Right now, public and school libraries have exemptions to the obscenity law. This bill would work by simply removing the exemptions.

Federal obscenity laws generally follow a three-pronged test, including whether a reasonable person finds that the material, taken as a whole, lacks serious literary, artistic, political or scientific value.

“Anything with artistic merit usually is not classified as obscene,” Tarbett said.

Several states, including Arkansas, have passed similar laws opening libraries to obscenity laws in recent years. Often, library materials under scrutiny are not straight-out pornography but instead works like “This Book is Gay” and “Beyond Magenta: Transgender Teens Speak Out.”

The most challenged in 2021 and 2022, according to the American Library Association, was “Gender Queer,” an illustrated memoir that recounts the author’s exploration of gender identity and sexuality.

“Our job isn’t to tell people what to read or to hinder their quest of knowledge. Our job is to provide a wide array on different topics and different reading interests,” Tarbett said on MetroNews’ “Talkline.”

Tarbett said systems are in place for West Virginia families to enjoy materials together. Anyone under age 12 typically has to have a parent’s signature for a public library card.

“This bill would just make our jobs infinitely harder,” Tarbett said, citing the threat of prosecution.

“What I’m afraid is that it would cause some self-censorship. So libraries wouldn’t select books that they might otherwise have purchased in the past. Also, it would be a burden for our budgets having to increase insurance liabilities and the cost of that on flat and already declining budgets. So that means less books on the shelves.”

Brandon Steele

Delegate Brandon Steele, R-Raleigh, is the main sponsor of the bill. Steele, in an interview on the House floor, said he has sponsored similar bills in the past but this one, prompted by discussions he’d had with librarians in his community, finally made an agenda.

“It came from my local school librarians and regular librarians who sat me down and explained to me that when this law was put on the books years ago, the definitions of what they were doing and what they were trying to present to minors was more educational. Now they’re seeing things that are more provocative and would fall in the category of erotica,” Steele said.

“What the bill says is you don’t show obscenity to minors. Right now we have an exception for schools, museums and libraries and what I’m hearing from my librarians and my constituents is, there’s stuff that’s getting into the school library, there’s stuff that’s getting into the public library that’s being shown to kids intentionally in settings that they would like to see that put to a stop.”

Steele said any gray areas could be sorted out in the courts. He cited a quote by Supreme Court Justice Potter Stewart, who said in 1964 of his test for obscenity, “I know it when I see it.”

“We’ve got to trust our judicial branch,” Steele said. “The Legislature needs to be in a spot where we give broad authority and broad discretion to judges to figure out how does this play out on the ground.

“For those people who worry about ‘Oh, this will cause litigation,’ this, that and the other — they also need to think about the parents and the children who are concerned that this exemption is in their community, that their children can be shown pornography and explicit images and erotica, that this exemption is in the law for it.”

Shawn Fluharty

Democrats in the House of Delegates have described the proposal as a “book ban bill” that could criminalize librarians, teachers, and museum curators for making available certain books or artwork, potentially resulting in a chilling effect on works like the Bible, biographies of Ruth Bader Ginsburg and Roberto Clemente or images of Michelango’s statue of David.

“We’ve seen this in other states where these laws when enacted and put into work actually have seen the Bible banned in certain states. So I don’t understand why big government Republicans are infiltrating the library and trying to remove the Bible,” said House Minority Whip Shawn Fluharty, D-Ohio.

“Everybody agrees pornographic material should not be displayed toward children. You would have 100 votes on that tomorrow. This bill goes well beyond that. This bill would have significant impact on, potentially, the Bible or other material that may or may not be deemed to be obscene. That is very much a gray area. That is to push political ideologies. That is big government at work.”

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