[Libs-Or] Tuesday Topics: School Libraries and State Obscenity Laws

Ross Sempek ross.sempek at gmail.com
Tue May 28 06:53:49 PDT 2019

*Oregon Library Association Intellectual Freedom Committee *
*Tuesday Topic, May 2019 *

Welcome to Tuesday Topics, a monthly series covering topics with
intellectual freedom implications for libraries of all types. Each message
is prepared by a member of OLA's Intellectual Freedom Committee or a guest
writer. Questions can be directed to the author of the topic or to the IFC

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*School Libraries and State Obscenity Laws*

The boundary between obscenity and culture has seen varied demarcations
over our human history. As social mores expand and contract, these vague
realms of art and licentiousness continue to exist in flux. In more recent
history, the school-library world has experienced an ebbing of public
opinion on what is considered age-appropriate material for minors.

Since the advent of the Miller Test
<https://en.wikipedia.org/wiki/Miller_test>, a three-point obscenity
barometer enacted by the Supreme Court in 1973, the federal government has
often been a point of reference for free speech. In fact, the Supreme Court
once stepped in to compel Colorado
make clear their nebulous obscenity statutes. But states have since exerted
their autonomy to reel-in free speech rights. A grass-roots group, Pornography
is Not Education <https://pornographyisnoteducation.org/> sued the Colorado
Library Consortium and EBSCO for the alleged presence of pornography in
their databases accessed by schoolchildren. And while voted down in
committee, obscenity-related laws in Colorado
<https://leg.colorado.gov/bills/sb19-048> and Maine
reached a vote, reflecting the states’ legislative priorities.

Mirroring these developments, and bolstered by State Representative Mike
Hill, the Florida state legislature sought to enact HB 855
<https://www.flsenate.gov/Session/Bill/2019/855/BillText/c1/PDF>, whose
scope was limited to school instructional materials. This bill would have
diluted the definition of obscenity and used child pornography as a
touchstone for enforcing new policies. Lines 75-80 cite statute 847.012
<https://www.flsenate.gov/Session/Bill/2019/855/BillText/c1/PDF>which, if
violated, would have issued the punishment of a third-degree felony.
Teachers and school librarians had no exemptions under this bill, and would
have been vulnerable to jail-time if they were found guilty of distributing
books that contained “obscene content.” The bill died in committee, as did
its relative SB 1454

Oregonians, on the other hand, enjoy a more liberal interpretation of free
speech protected by our state constitution through a 1987 Oregon Supreme
Court ruling in the State v Henry
<https://en.wikipedia.org/wiki/State_v._Henry> case. At the time, the ACLU
successfully argued that Oregon’s existing free speech laws
<https://en.wikipedia.org/wiki/State_v._Henry> were much more inclusive
than those at the federal level, and as a result established that material
deemed obscene using the “Miller Test” was actually protected under
Oregon’s freedom of speech parameters. As the “first state in the nation to
abolish the offense of obscenity,
<https://en.wikipedia.org/wiki/State_v._Henry>” Oregon is well-placed to
continue this unique accolade.

But like those objections occurring today, this precedent was met with
protests. This section of the constitution was challenged in 1994
<https://en.wikipedia.org/wiki/State_v._Henry> and 1996
Both lost, and the language hasn’t been challenged since.

So given the tumultuous history of the matter at hand, it can be difficult
to recognize librarians’ opponents as a part of the community they serve.
But this fact is undeniable, and can be built upon. In this spirit, hazard
some outreach with some help from the ALA
<http://www.ala.org/everyday-advocacy/engage>. Indeed, those litigating
against libraries are stakeholders, and need to be brought to the table. We
need not compromise our values as librarians, but we can begin a dialog
<http://www.ala.org/everyday-advocacy/speak-out> whose value lies within

*Ross Sempek*
OLA Intellectual Freedom Committee Member
Library Assistant, Happy Valley Library
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