Delegates passed legislation opening public and school libraries up to felony charges for the display or dissemination of obscene material to minors.
Lawmakers debated the matter for about an hour, with Republicans contending the bill would protect minors from exposure to obscene material and Democrats saying the change would expose librarians to the threat of criminal prosecution and result in a chilling effect on books on the shelves.
House Bill 4654 passed on an 85-12 vote. It now goes to the state Senate for consideration.
Delegate Brandon Steele, R-Raleigh, said he sponsored the bill following concerns expressed by some librarians in his own community. He cast doubt on the likelihood of prosecution of librarians but characterized the bill as putting libraries and museums under the same standards as other places in society.
“That’s the chilling effect I hope happens, is that people who would seek to use these domains that have been set up in what should be centers of education and centers of civic value for our society — I’m hoping it has a chilling effect on people with bad intentions to use those spaces to do things to children that they ought not be doing,” Steele said.
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 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. That book came up several times in public hearings and committee discussion of the West Virginia bill.
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.
“When you go and you look and you define prurient interest, like we have, that its sole purpose is sexual arousal and sexual gratification — I hate to tell some of my colleagues in here, there’s going to be some books that you don’t like that are not going to fall into that category of a crime,” Steele said.
Delegate Joey Garcia, D-Marion, countered that people can have a range of views on what material is obscene.
“And all it takes is a prosecuting attorney or someone else who wants to make a statement, political or otherwise, to ruin somebody’s life,” Garcia said.
Delegate Evan Hansen, D-Monongalia, said the exceptions exist to protect librarians from criminal prosecution over books that make some community members uncomfortable.
“This is going to have a chilling effect that’s a de facto book ban,” Hansen said.
“It doesn’t explicitly ban books, but to mitigate the risk librarians are going to make different decisions. They’re going to remove books from their shelves so that they and their employees and their volunteers and their board members are not going to be subject to criminal prosecution and paying for their defense out of their own pocket.”
House Judiciary Chairman Tom Fast closed debate by arguing that if the argument against removing exemptions were taken to its logical extreme, that would mean opening up libraries to the distribution to absolutely any material to minors.
“I suppose we could take the opposite side of those who oppose this bill and we could back off and just allow anything to be given to our children under the cover that we cannot define what is obscene,” said Fast, R-Fayette, a candidate for circuit judge in that county.
“What that means is, anything could be given to our children. That is the end result of the opposing argument, and I would reject that.”