Legislation to Eliminate Obscenity / Harmful to Minors Exemptions for Librarians and Educators
These bills propose amending state criminal obscenity statutes in order to permit criminal prosecution of librarians and educators for distributing materials claimed to be obscene or “harmful to minors” (that is, materials believed to be “obscene as to minors".) By eliminating longstanding legal protections that shield libraries and library workers from criminal prosecution for providing access to books and online resources to minors, these bills would allow partisan advocacy groups and parents to sue or prosecute library workers when they make available books and other materials that present accurate medical information about sex or puberty, describe sexual behavior, or reflect the experiences of LGBTQ+ persons, based on the false claim that any material that includes information about sex, sexuality, gender identity, or sexual orientation is legally obscene and inappropriate for minors. A number of bills have also proposed provisions that would allow parents to file civil lawsuits for money damages based on a claim that a librarian or educator has distributed materials to a minor that the minor's parent believes to be obscene or harmful to minors. Major proponents of these bills include conservative family values groups, conservative Christian legal organizations, and advocacy groups opposed to comprehensive sex education and LGBTQ+ equality.
Parental Rights Bills
These proposals seek to create and establish a “parents bill of rights” that would affirm a parent's right to direct the education of his or her child and be informed about the child’s educational program. Proposed legislation would mandate transparency and an absolute right of parental participation in the operation of the schools. As envisioned by their sponsors, such bills will allow parents to "push back" against educators by providing a means to sue educators and school districts when a parent believes that their right to control their student's health care or access to information has been infringed by the school or its employees. A feature of many of these bills are provisions that require schools to provide parents a list of books available to students in their libraries and provide parents with all of a student's records, including library records. In some cases, the bills go further and require parental review committees to approve instructional and/or library materials. One model for these bills is S. 3218, the bill introduced by Senator Josh Hawley, R-Mo. in the U.S. Senate, as well as the competing H.R. 6056 "Parents' Bill of Rights" Act introduced in the U.S. House. Florida adopted a parents' bill of rights over the summer, primarily to address mask mandates and COVID-19 restrictions in schools as well as empowering those individuals advocating against "critical race theory" concepts being taught in classrooms.
Mandatory Database and Electronic Resource Regulation and Filtering
These bills would directly regulate or censor the content of public school and public library online research databases and content platforms by mandating the use of filtering tools or by allowing contracting agencies to impose financial penalties when it is alleged that the research database or platform contains allegedly pornographic materials. The proposed legislation targets vendors and content providers such as EBSCO, Gale, ProQuest, and Overdrive, and is based on unsupported and unproven claims advanced by conservative anti-pornography organizations that they can find hard-core obscenity in databases intended for use by K-12 students.While statewide legislation to ban these resources from schools and libraries has not succeeded, both Utah and Texas have adopted laws or regulations that allow state educational authorities to impose severe financial and legal penalties on online content providers if a minor uses the database or platform and accesses materials a parent believes to be pornographic or harmful to minors.
Mandatory Online Device Filtering (“Human Trafficking Prevention Act,” or HTPA)
This model legislation proposed by a filtering software provider and a number of anti-pornography organizations requires internet-capable device manufacturers to install working filters on all devices before sale to the public. Under the regulations proposed by these bills, the installed filters cannot be disabled unless disabling is affirmatively requested by adult users who identify themselves to a regulating authority, pay a per-device fee for disabling and agree to receive information on harms of pornography. No version yet introduced provides any exceptions for institutional sales of internet-capable devices to libraries or schools.
HTPA bills have been introduced in state legislatures for the past five years, but until last year have failed to move out of committee.
Content Censorship
Beginning in 2021, state legislators have sought to directly censor content available in schools and universities by proposing, and adopting, laws that prohibit K-12 schools and public universities from teaching, offering, or distributing certain content to their students, faculty, or staff.
"Critical Race Theory" or "Divisive Concepts" Content Bans
These bills prohibit public K-12 schools, public colleges and universities, and government agencies from teaching, advocating, acting upon, or promoting "divisive concepts." As used in these bills, “divisive concepts” or “divisive acts” encompasses concepts and framings associated with diversity training and resources that raise awareness of racism, sexism, systemic bias, and racial injustice. The bills draw on language contained in an executive order issued by former President Trump in September 2020 that banned the use of “divisive concepts” in staff development programs offered to, or conducted by, government employees and federal contractors, on the grounds that such trainings were biased against white federal employees. In 2021, conservative advocates began an advocacy campaign that sought to associate diversity training and any discussion or consideration of race, racism, Black American history, and related issues with "critical race theory," a rhetorical construct stolen from academia that falsely equates the consideration of race, racism or related topics as anti-American and Marxist indoctrination that discriminates against white students. As a result, state legislators across the United States introduced bills prohibiting any instruction, discussion, or consideration of racism, racial injustice, and related issues in schools and universities.
Of note is New Hampshire's HB 544, which became law despite widespread public opposition to the bill. After HB 544 was rejected by legislators, its sponsor inserted the language of the legislation into HB2, a must-pass budget bill that could not be vetoed or rejected. The law is now being challenged in federal court.
LGBTQIA+ Content Bans
While many bills target "divisive concepts" associated with a range of social justice issues related to race or sex, a number of state legislators proposed an outright ban on any textbooks, instructional materials or supplemental instructional materials - including library books - that “promote, normalize, support, or address lesbian, gay, bisexual, or transgender (LGBTQ+) issues or lifestyles." In 2022, Florida's legislature adopted the “Parental Rights in Education Act,” or “Don’t Say Gay” law, which forbids any classroom discussion or instruction about sexual orientation or gender identity from kindergarden through third grade, and prohibits public schools from having any discussion or instruction about sexual orientation or gender identity in any manner deemed to be against state standards in all grades through high school. Parents can bring an action against the school district to obtain a declaratory judgment that the school district procedure or practice violates the law that requires the school district to pay all costs associated with the litigation. Similar bills have been introduced in 20 states, with Alabama adopting its own version of a "Don't Say Gay" law in in 2022.
