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West Virginia House passes bill allowing prosecution of librarians

(Capitol Notes - Graphic Illustration/MetroCreative)

CHARLESTON — The West Virginia House of Delegates debated the merits of removing protections for public librarians and school librarians from criminal prosecution in the off chance a minor encounters books and content some consider to be obscene.

The House passed House Bill 4654 – removing bona fide schools, public libraries, and museums from the list of exemptions from criminal liability relating to distribution and display to a minor of obscene matter – in a 85-12 vote Friday, sending the bill to the state Senate.

HB 4654 would lift criminal liability exemptions from schools in the presentation of local or state-approved curriculum, and public libraries and museums displaying obscene matter to a minor when the child is not accompanied by a parent/guardian.

State Code defines obscene matter as anything an average person believes depicts or describes sexually explicit conduct, nudity, sex or certain bodily functions; or anything a reasonable person would find lacks serious literary, artistic, political or scientific value. According to State Code 61-8A-2, any adult who knowingly and intentionally displays obscene matter to a minor could be charged with a felony, fined up to $25,000 and face up to five years in prison if convicted.

The bill has been the focus of a contentious public hearing and a lengthy meeting of the House Judiciary Committee, where supporters of the bill and a representative of the library community were grilled by committee members during testimony.

Supporters of the bill said it does not ban books or stop the selling or distribution of books some consider to be controversial or obscene. It merely provides the same prohibition against knowingly providing obscene materials to children outside the supervision of parents and guardians that already exist.

“This bill is giving our students and children in the community the same protection that they receive from GoGuardian and the FCC,” said Del. Jeff Stephens, R-Marshall, a school teacher referring to a computer program that blocks students from accessing pornography online at school.

“This bill does not ban books or censor speech. These books can still be bought privately by people if they’re adults. We’re not saying they need to be taken off of the market,” said Del. Elliott Pritt, R-Fayette, who is also a teacher. “What this bill does do is stop obscene and pornographic material, sexually explicit materials from being available to children in public taxpayer-funded spaces.”

Opponents of the bill said that while the bill does not ban books, the bill would have unintended consequences for public and school libraries, resulting in increases in challenges to even classic books and attempts to criminally charge librarians over books not pornographic in nature, but books that include descriptions of sex. They also said it could result in improper criminal charges against library staff.

“It is going to cost our counties and our librarians when these matters go to the court system,” said House Minority Leader Sean Hornbuckle, D-Cabell. “Because this is still vague, I’m scared … This is a very dangerous bill.”

“The librarians on staff might not know if a book has obscene matter in it or may or may not have shown it to someone, but because it was in the facility and it was sitting on a shelf, it could still be prosecuted,” said House Minority Whip Shawn Fluharty, D-Ohio. “What you are seeing is done in third-world countries, and now it’s going to be a headline in West Virginia.”

The lead sponsor of the bill — Del. Brandon Steele, R-Raleigh — said the criminal charge of showing pornography to minors without parental supervision can’t be made against potential bad actors who decide to bring pornography into public and school libraries and show young children in order to desensitize them. However, Steele provided no examples of someone committing similar acts in state libraries.

“This does not stop the good mission of our libraries and the good point of our libraries, schools, and museums to educate and foster debate on issues,” Steele said. “What this does is tear down the … sanctuary for conduct that all of us have agreed for over 100 years is criminal. If it is illegal in the parking lot, it should be illegal in the building.”

According to PEN America — a freedom of expression and 1st Amendment advocacy organization — several states are either removing criminal liability exemptions for public and school libraries, or expanding the definition of obscenity to capture a wider array of books that could potentially result in criminal charges for simply having them on a shelf. The most recent was Montana last year.

Del. Mike Pushkin, D-Kanawha, offered an unsuccessful amendment Friday that would have kept in place criminal liability protections for teachers, citing examples of health teachers who provide instruction in sex education. The amendment failed by voice vote.

“I’m not so sure who the arbiter of what is obscene and what isn’t,” Pushkin said. “This makes sure we’re not going to penalize teachers simply for teaching curriculum in the classroom.”

Steven Allen Adams can be reached at sadams@newsandsentinel.com

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