Lawmakers consider change to “obscene” materials rule for libraries, museums, public schools

State lawmakers are considering a bill that would remove protections for librarians, museum staff and public school employees in relation to the availability of obscene materials to minors.

House Bill 234 would remove the long-standing exception for libraries, museums and public school staff to the public display or dissemination of obscene materials to minors.

Proponents of the bill argued that students have access to what they consider obscene materials in schools and libraries, but opponents argue that the definition of obscene in state law is vague and subjective.

Susie McIntyre, director of the Great Falls Public Library, spoke in opposition to the bill during a Jan. 19 hearing and told The Electric that currently, the exception protects libraries, schools and museums from criminal prosecution as long as materials are purchased, displayed and distributed based on their policies.

She said if there was something they had outside of those policies, they’d be subject to the existing law.

If the bill were to pass, library, museum and public school staff and board members would be subject to six months in jail and/or a fee of at least $500 but not more than $1,000.

“Libraries absolutely want to protect children, schools want to protect children,” McIntyre said.

The problem is that the definition of obscenity in state law is vague and based on community standards.

Under state law a thing is obscene if, “it is a representation or description of perverted ultimate sexual acts, actual or simulated; it is a patently offensive representation or description of normal ultimate sexual acts, actual or simulated; or it is a patently offensive representation or description of masturbation, excretory functions, or lewd exhibition of the genitals; and taken as a whole the material: applying contemporary community standards, appeals to the prurient interest in sex; portrays conduct” as described above “in a patently offensive way; and lacks serious literary, artistic, political, or scientific value.”

McIntyre said the Great Falls community is “large and diverse and broad.”

The bill, if passed, “would severely restrict our ability to perform our function,” she said.

There’s not an existing problem, McIntyre said, and the library has a process for members of the public to address any concerns about materials in the collection.

She said the library has had less than five complaints that required a written response from staff and none rose to the level of review by the library board in her time working at the library since 2005.

The GFPL has a form to request reconsideration of library material that a library committee reviews and the library director issues a written response. If the submitter is dissatisfied with that response, they can take their complaint to the library board for review.

McIntyre said enforcement of the proposed law change is also unclear and would have a chilling effect on hiring for libraries, schools and museums, which are already underfunded and understaffed.

“It’s a really problematic law,” she said. “We need to be free to provide that range of resources to people and not let other people dictate what other families decide to watch and to do.”

The Great Falls library offers library cards to minors. Those under 14 need a parent signature to get a card, those over 14 and over don’t need a parent signature to get a library card.

Under state law, a person’s library checkout history, even for minors, is protected and cannot be accessed by parents or anyone else.

McIntyre said some librarians are considering ceasing checking out materials to minors should the bill pass.

Tom Moore, superintendent of Great Falls Public Schools, said, “the School Administrators of Montana and the Montana School Boards Association are watching this bill. They are providing some pros and cons to their membership about the latest version of the bill and the potential implications to schools.”

Lance Melton of the Montana School Boards Association told The Electric that the section of law HB 234 would amend pertains to commercial establishments so it would “not apply on its face to public schools. Public schools are not commercial establishments. I am not sure why there was ever an exception in the law to the prohibition on distributing obscenity to minors but the removal of that exception will not change anything in public schools as our schools don’t distribute obscenity as it is defined in law in any manner whatsoever.”

During the hearing, a proponent of the bill, Jeff Laszloffy of the Montana Family Foundation, wouldn’t read the definition of obscenity in state law because “there are words in there I don’t want to read in a public hearing that could be going out to school children across Montana.”

Instead he read the definition from Webster’s Dictionary.

McIntyre said that was telling and asked if that meant the library couldn’t display the Montana Code Annotated because it would be considered obscene material.

“It just opens this huge Pandora’s box of trying to decipher what our community thinks is obscene,” McIntyre said. “We certainly want to protect children and families, but it is every family’s right to decide what’s right for them. We have a rich and diverse community so we need a rich and diverse collection. We cannot tailor the collection to one slice of the community.”

During the Jan. 19 legislative hearing, Elsie Arntzen, state superintendent of education, said “there should never be obscene material or pornographic instruction in any of our public schools.

She did not offer any specifics on what obscene material was available in schools. Her office sets education and curriculum standards statewide and Arntzen did not cite any specific issues with existing curriculum in Montana public schools.

During the hearing, Rep. Bob Phalen, R-Lindsay, the bill’s sponsor, said “by doing this, not only will it reduce the amount of obscene material shown in public schools, libraries and museums, but will also penalize these entities when in violation of this bill.”

Phalen did not offer specific examples of obscene materials being available in schools, libraries or museums or specific issues that had been raised as the impetus to the bill.

Tom Figarelle, director of the C.M. Russell Museum in Great Falls, said the bill is “just fear and ignorance. We’re trying to create solution in search of a problem. This is not an issue in Montana museums. We have to call it what it is and that’s censorship.”

He said museums, libraries and schools need the “freedom to interpret and educate and to educate without the fear of criminal prosecution. It’s sad that here we are in 2023 having this conversation that feels like it’s meant for a century ago. If we’re not a fully free and educated society, we are doomed to continue antiquated thinking and that’s entirely what this HB234 is.”

Figarelle said the it’s legislative overreach to say what’s appropriate or not. As a parent of young children, he said he’s the only one qualified to educate them on what’s inappropriate or obscene.

He said he intends to submit feedback on the bill as a parent of young children as well as someone who cares about institutional education.

It’s important, Figerelle said, to see other perspectives and their top goal for visitors to the museum is that “art causes them to think.”

It’s not just about seeking a beautiful sky or majestic vista, he said, “art is also about having you question your society an question your place in it. If art offends people, then let’s understand it and have a conversation about it.”

He said proponents of the bill seemed to be focused on books and printed materials, but “if we allow censorship to exist in those corners, it’s a matter of time before someone says that work by Charlie Russell is offensive.”

Some of Russell’s work depicts the violent nature of the west or women in seductive positions, he said.

“Once we allow censorship to take hold in one are of education, it is much more likely that it will take hold elsewhere,” Figarelle said, and he doesn’t know of a single museum in Montana that displays pornographic materials, though the museum did have nude art on display in the past and haven’t received any complaints.

“We take any effort to control freedom and free expression and civil liberties very, very seriously because it does normalize an effort to restrict thought at that is a troubling place that we don’t want to be in America,” Figarelle said.

He said that they already struggle to recruit museum professionals and exhibitions to come to more remote locations like Montana and bills such as HB 234 would create more barriers making it “harder to provide meaningful experiences” for the public and visitors.

Through the lens of a museum, that could have a significant impact on the tourism industry, he said.

“If we’re attempting to censor that for fear of a problem that doesn’t exist,” Figarelle said. “We’re making some economic decisions that doesn’t seem to have a strong calculus.”