By Casey Smith
Indiana Capital Chronicle

A bill that seeks to ban materials deemed “harmful to minors” in school and public libraries drew sharp debate Wednesday at the Indiana Statehouse, especially from librarians, who argued that such a policy would open them up to criminal charges and create a “chilling effect” on book selections.

Beneath the surface of the discourse is contention from Hoosier parents who say their local school boards have rejected their challenges of certain materials, leaving books some deem to be “obscene” and “objectionable” accessible to kids in school libraries.

Republican state lawmakers agreed with those concerns, saying the book removal process “isn’t working” at the local level and now warrants statewide legislative action to require “transparency between schools, libraries and communities.”

The proposal under consideration is similar to the controversial Senate Bill 12. Rather than hearing that measure, however, House lawmakers are seeking to insert provisions from the bill into another.

The House Education Committee on Wednesday completely stripped language in Senate Bill 380, which dealt with graduation rates.

Legislators are now weighing an amendment authored by Rep. Becky Cash, R-Zionsville, that seeks to create a new process for parents to request the removal of books alleged to be obscene or harmful to minors from school and public libraries.

Language in the proposal would also remove “educational purposes” as a reason that public schools and libraries could claim legal protection for sharing “harmful material” with underage students.

“’I’m not encroaching on parental rights,” Cash said. “There’s not a protection to say, ‘I want this rampant sexual content available to my child in the school.’’

Democrats — along with school and library officials — pushed back, arguing the amendment could lead to the removal of anything one parent deems to be unsuitable over the objection of other parents.

“I don’t believe that removing materials protects children,” said Diane Rogers, librarian at Ben Davis Ninth Grade Center in Indianapolis and vice president of the Indiana Library Federation. “Giving children the opportunity to read about the world and think about that world is far safer than having them actually experience it in real life.”

The American Civil Liberties Union of Indiana additionally maintained that the amendment’s “vagueness” is “almost certainly meant to ban books about LGBTQ topics and sex education.”

The committee is expected to vote on the amendment and the bill on Monday. If approved, the legislation will move to the full House.

Who Decides What Is ‘Obscene’ Or Harmful?

School and public libraries would need to have in place a process for parents and community members to request review of certain works that are alleged to be “obscene” or “harmful to minors,” according to Cash’s proposed amendment. Those terms have very specific definitions in state law though that a challenge would have to meet.

An appeals process must also be established if officials don’t agree with the request. A local prosecutor would then be able to consider legal action, but only after those internal school and district processes have been “exhausted.”

Each school or public library would additionally have to publish books in its collection online or make hardcopies available upon request.

Cash emphasized that her proposal does not require public libraries “to remove any books or materials,” but allows for the “re-shelving” of those works in different areas of the library. But it would require removal in school libraries.

“It’s a whole community — there’s not going to be one parent that gets to dictate to an entire school board … that’s just a false narrative,” said Rep. Martin Carbaugh, R-Fort Wayne. “But if enough parents were to come in and the board agrees, then it probably is obscene or sexual in nature enough for that community. I don’t know why that process is such a threat.”

Current Indiana law already outlines criteria that has to be met for a book to be considered criminal.

Outlawed materials must, as a whole:

• describe or represent, in any form, nudity, sexual conduct, sexual excitement, or sado-masochistic abuse
• appeal to the prurient interest in sex of minors
• be patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors
• lack serious literary, artistic, political, or scientific value for minors

Lawmakers aren’t seeking to change Indiana’s decades-old statutory definitions. Republicans held, too, that they aren’t seeking to have classic novels or books “where someone has two moms or two dads.”

“I don’t think anybody thinks the word sex is obscene or sexually explicit,” Cash said, referring to individual references that might exist within a single book. “And if they do — well, that’s why there’s a process.”

But Democrats on the committee repeatedly pointed out that while some parents view certain materials as harmful or obscene, others might disagree.

Rep. Ed Delaney, D-Indianapolis, argued, too, that the proposed amendment could overburden the prosecutorial system and school boards, as well as threaten First Amendment rights.

“We are not the court of appeals for parents unhappy with school board decisions,” DeLaney said. “But if we were, we would want evidence: what parent, what school, what book, what process? Not this vague discontent.”

Few Details About ‘Constituent Concerns’

After an hour of back-and-forth debate between lawmakers, the House committee heard more than four hours of public testimony.

Among the dozens of critics were many school and public librarians. They largely testified in support of the process laid out for parents to challenge books — noting procedures are already in place. But they were vehemently against removing the defense against a felony charge on the basis of a book’s educational value.

Under the proposal, a local prosecutor could decide to charge a public librarian, or a K-12 staff member, for giving “harmful” material to minors, meaning they could not argue in court that the material has educational value.

They could still argue that the material has literary, artistic, political or scientific value as a whole, however.

If charged, a person could face a Level 6 felony, which carries a maximum penalty of 2.5 years in prison and a $10,000 fine.

There is no statutory defense currently in state code relating to obscenity. If such materials — such as a pornographic magazine —  are being provided to minors, anyone can be prosecuted. Language in Cash’s proposal focuses on “material harmful to minors.”

“This bill is about more than just an explicit material. And what is explicit is still up to interpretation. What is harmful to minors is still up to interpretation,” Rogers said. “You may find an image objectionable, you may find that image uncomfortable, but you don’t have the right to tell me that I can or cannot live with that image. If you don’t want to get that book, don’t check it out. But that doesn’t mean I have to remove the book.”

Many school officials who testified Wednesday said their districts already have such processes in place. Cash maintained her amendment makes those options more visible.

Although numerous GOP legislators held that sexually explicit materials continue to be accessible to Hoosier kids in schools, they’ve held back on details.

Cash said “thousands of parents” have complained to her about obscene material in school libraries in Indiana. When asked to elaborate, she declined to name any specific school districts where problems persist.

“It is spring break in my district right now — my phone is lighting up with people saying, ‘I’m so sorry I cannot be there to testify,’” Cash said. “I am so grateful that the librarians were able to get here today to testify. But the fact that moms and dads who are taking care of their children could not be here does not represent the fact that this is a handful of people.

Meanwhile, Rep. Jake Teshka, R-South Bend, refrained from giving examples of specific titles or authors of books that he — or his constituents — consider to be unacceptable for minors. But he did read a passage from a book that he considered prurient.

State law, though, requires the book or material “as a whole” to be harmful — not a few pages or passages.

“If we’re going to come up here in a public committee where things are being talked about and throw out the names of authors and titles, that may be somewhat inappropriate if we just start listing those,” Teshka said. “I just don’t think that that’s appropriate for this body.”