Advocates fear Alabama House bills could lead to prosecutions of librarians

First Amendment and free speech advocates have expressed alarm over state legislation that they say could restrict access to materials and discourage people from becoming librarians.

HB 385, sponsored by Rep. Arnold Mooney, R-Indian Springs, was approved by the House State Government Committee last Wednesday after a public hearing. The bill declares a public nuisance any premises that distribute obscene or harmful materials to minors and allows the Attorney General or prosecutors to file a lawsuit to challenge the practice.

The bill also expands the term “sexual conduct” in state law to include “sexual or gender oriented material that knowingly exposes minors to persons who are dressed in sexually revealing, exaggerated, or provocative clothing or costumes, or are stripping, or engaged in lewd and lascivious dancing, presentations, or activities in K-12 public schools, public libraries, and other public places where minors are expected and are known to be present without parental consent.”

That legislation, along with HB 425, sponsored by Rep. Ernie Yarbrough, R-Trinity, comprise a package that library advocates claim is aimed at expanding the obscenity law while also removing free speech protections for school and public libraries.

Both pieces of legislation remove the exemption afforded to libraries and their employees for obscenity, allowing them to be criminally prosecuted for distributing what some consider obscene materials.

Advocates worry about the potential consequences.

“This legislation, if it were to be enacted, would likely have a chilling effect on the content of materials that public libraries stock on the shelves,” said Clay Calvert, nonresident senior fellow at the American Enterprise Institute, a conservative think tank based in Washington, D.C. “By chilling effect, it will lead to self-censorship, meaning that libraries will be reticent to purchase materials that could be deemed harmful to minors.”

Messages were left with Mooney seeking additional comment.

“I think it is important to look at what this bill does not do,” Mooney said during the April 3 meeting. “This bill does not affect the rights of any adult to engage in sexual or gender-related speech or activities in any place where minors are not present, and which would otherwise be defined as obscenity.”

Matthew Layne, the president of the Alabama Library Association, said in a statement that “Montgomery politicians are now seeking to criminalize librarians simply for doing their jobs.”

“The message is clear – don’t arrest Alabama librarians and stop turning our libraries into political battlefields,” the statement said.

Alabama law already makes it a crime to distribute obscene materials to minors. Violating this provision amounts to a misdemeanor violation punishable by up to a year in jail and a $10,000 fine.

First Amendment experts who reviewed the legislation said the package of bills expand the rules already in statute that guard against obscenity. Obscenity, the legal definition, is not protected by free speech, but few literary materials can be classified as obscene, at least legally.

But the major concern is that the bills expand the restriction to material that could be “harmful to minors,” effectively expanding the universe of materials that could be prohibited from the library.

That leaves librarians in a quandary. They would have to guess what amounts to not only what could be obscene, which few materials are, but also what might be harmful to minors, a highly subjective classification.

Calvert said that librarians will likely favor caution and simply not place potentially controversial items into circulation instead of dealing with the potential liability that comes from making those materials accessible.

“What it means is that you are obviously going to have a number of books in school libraries and public libraries, whether or not those books are harmful to children, the loudest voice in the room, or any voice in the room, is going to say, ‘remove this book, because remember, if you don’t, we could prosecute you under obscenity laws,”’ said Kevin Goldberg, a First Amendment specialist with the Freedom Forum, a nonprofit that advocates for First Amendment issues. “What are you going to do if you are a librarian? You are going to say, ‘this is not worth it.’”

That, Goldberg said, could lead people to exit the profession.

“People are just going to quit,” he said. “You’re not going to have public school libraries or public libraries. Maybe that is the intent of this for a lot of people. In Alabama, and a lot of other states, there are pressures being put on professional librarians. The American Library Association, in some areas, is seen as outlaws. That is a real danger, that you are going to lose people who are really good at ensuring children do read.”

It is also an open question whether the measure, should it be adopted, is even constitutional. Both Calvert and Goldberg pointed to the section in the law that defined sexual conduct as a prime example. The term “sexually revealing, exaggerated, or provocative clothing or costumes” is vague. Calvert said the real target may be drag shows and not sexually explicit materials in books. Mooney introduced a bill last year to ban drag show performances where children were present. The bill did not become law.

“It is highly problematic because those terms are void for vagueness,” Calvert said. “What does it mean to be ‘revealing’ or ‘provocative.’ An easy attack on that, were it to be adopted, would be that those terms are void for vagueness. They do not provide fair notice for what the restrictive speech is. Who is to say if something is provocative or not, that is a matter of taste and style that is better left to the individual than to the government.”

The question, when evaluating materials on speech, is whether the evaluation is done on educational grounds instead of ideology. Expanding the restriction to gender-oriented material, say experts, could wade into restrictions based on ideology, which courts tend to frown upon.

“They really don’t want things that are gender-related content,” Goldberg said. “Specifically, they don’t want drag. That is a lot of what this is about. They don’t want same sex couples, actions, references, characters in books. So, what happens, you see this a lot, is you see a sexualization of these same sex characters even though there is no actual sexualization involved.”

There is a line that government actors cannot cross.

“This isn’t hard,” Goldberg said. “This is some basic First Amendment stuff we are talking about here. Don’t take books off shelves because you don’t like what is in the book. Don’t make decisions for everybody in the community because you don’t like what is in the book. That is both good policy with regards to libraries, but also is what the First Amendment actually protects. One person doesn’t get to determine what everybody else reads.”