Bill that could open libraries to felony obscenity charges over material for minors goes to full House

The full House of Delegates will consider opening public and school libraries up to felony charges for the display or dissemination of obscene material to minors.

The House Judiciary Committee, after a couple of weeks of delayed action on the bill, voted 21-3 to advance the bill after about two and a half hours of discussion.

Brandon Steele

The sponsor of the bill, Delegate Brandon Steele, made closing remarks in the committee to characterize the policy as a bulwark against pedophilia.

His voice rising, Steele said, “What I hope the chilling effect is of this legislation is to remove the sanctuary for pedophilia that exists in our code. I take votes in here to protect people. I’m voting to protect children, minors, from being groomed and targeted by pedophiles and to get rid of the sanctuary that was set up in our code 25 years ago by people who weren’t thinking about what they were doing.

“If it’s a crime in the parking lot, it’s a crime in the building. Period. I hope the chilling effect chills the pedophiles and lets them know we’re not going to create a safe space for them. We’re not going to create a cave they can hide in. We’re going to protect our children. Regardless of what your title is at your job, you do not get to show pornography to minors.”

Right now, public and school libraries have exemptions to West Virginia’s law against displaying or disseminating obscene material to minors. House Bill 4654 would work by simply removing the exemptions.

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

Several states, including Arkansashave 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.

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.

Megan Tarbett

Megan Tarbett, president of the West Virginia Library Association, testified extensively before members of the Judiciary Committee and said local libraries have systems to consider initial placement of books and then to potentially reconsider that placement if a community member objects.

“So, if you find a book come on the shelf that you don’t care for, you can come get a form at the front desk, tell us what page, why, and then there is a review process and usually that starts with staff and then can go up as far as the board and our choices are move, remove or remain,” she said.

She broadly described challenges to “Gender Queer,” which she said is usually shelved in the adult graphic novel section, and to “Me and Earl and the Dying Girl,” which has received complaints about profanity and sexually explicit content.

Tarbett was handed a blurred image from “Gender Queer” and asked to describe what was displayed.

JB Akers

“Can you just generally describe for us what is in what’s depicted on that? Page from that book that I gave you?” asked Delegate J.B. Akers, R-Kanawha.

“I do believe it is a sexual act,” Tarbett responded.

Akers also cited a book called “Let’s Talk About It,” a graphic novel that has the subtitle “The Teen’s Guide to Sex, Relationships, and Being a Human.” The delegate read a passage that began with “A great place to research fantasies and kink safely is the internet.”

Akers later said no one is trying to ban books. “We’re saying don’t put this in the school library. These are graphic, sexual novels.”

David Kelly

Delegate David Kelly, R-Tyler, asked Tarbett, “Do you have books that are considered obscene, not necessarily pornographic, but obscene in your library?”

No, Tarbett said, “because they all have artistic merit.”

So, suggested Delegate Todd Kirby, R-Raleigh, “If this bill were passed, it would have no effect on your or your library.”

Todd Kirby

Tarbett said it could have consequences short of prosecution.

“If it opens up the possibility for confusion on whether a staff member is going to be arrested it will absolutely affect who we recruit to staff our libraries, how much we have to pay them, how much we put in our book budget,” Tarbett said. “So all those indirect results would absolutely affect us.”

Evan Hansen

Democrats on the committee asked about possible gray areas with explicit content in “The Diary of Anne Frank” cited as an example.

“What would library directors do to mitigate risk?” asked Delegate Evan Hansen, D-Monongalia. “Do you think this could have a chilling effect on the types of books that are at our libraries?”

Yes, Tarbett said. “What will most likely happen is that librarians especially at our smallest libraries will begin to self censor what they order where they may have ordered the book in the past.”

Hansen responded, “So you use the phrase self censor. I call it the chilling effect. I think we’re talking about the same thing where, while this bill doesn’t technically ban books, the impact of the bill is to remove books from our shelves.”

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