New bill in Idaho Legislature would allow lawsuits over ‘harmful’ material in schools, libraries

By Zach Hagadone Reader Staff

The Idaho Legislature is considering a bill that would make it illegal for any school, public library or “agent thereof” to “promote, give or make available to a minor” any material deemed “harmful to minors.” What’s more, should a minor obtain such material, they, their parent or guardian would have cause to sue if the institution or its employees made the material available, or did not take “reasonable steps” to keep the material from minors.

Introduced to the House State Affairs Committee on Feb. 14 and sponsored by Sen. Cindy Carlson, R-Riggins; Rep. Jaron Crane, R-Nampa; and Blaine Conzatti, of the Idaho Family Policy Center, the bill would entitle litigants to recover $10,000 in statutory damages “for each instance in which they obtained material harmful to minors,” as well as “actual damages and any other relief available by law,” including attorney’s fees and other costs from the defendant.

The only affirmative defenses in the legislation are that the defendant reasonably believed the minor was 18 or older based on some form of documentary proof, or if the minor had been accompanied by a parent, guardian or other adult who “signed a written statement to that effect.”

Paraphrasing from the East Bonner County Library District’s Collection Development policy, Library Director Viktor Sjöberg told the Reader that, “reading is a private activity, and it is the parent’s or caregiver’s responsibility to examine materials as far as their suitability for their children.

“One family’s choices may differ greatly from those of their neighbors, and that is precisely why preserving the freedom to read is so important,” he added. “I celebrate the freedom of families to make the choices that are correct for them, and I am not interested in interfering with that. This proposed bill would do just that.”

Referred to as The Children’s School and Library Protection Act, House Bill 139 treads similar ground as the controversial HB 666, which died in the Senate in the 2022 Legislature, in that it seeks to “restrict children’s access to material that is obscene or harmful to minors.”

Where the measures differ is in the provision for civil litigation spelled out in HB 139.HB 666 sought to amend Idaho Code to remove protections given to schools, public libraries, universities and museums for possessing and making available material that might be deemed “harmful.”

HB 139 defines material “harmful to minors” as “anything tangible” — whether it be “derived through the medium of reading, observation or sound” — that describes, represents or performs “nudity, sexual con- duct, sexual excitement or sado-masochistic abuse” that “appeals to the prurient interest of minors,” and, “as a whole, has the dominant effect of substantially arousing sexual desires in persons under 18 years of age.”

Whether such material “appeals to the prurient interest” or “substantially arous[es] sexual desires” of minors would be “judged by the average person,” as well as “contemporary community standards” regarding what is “patently offensive.”

Examples in the bill include, but are not limited to, “normal or perverted, actual or simulated” “intimate sexual acts,” and “masturbation, excretory functions, or lewd exhibition of the genitals or genital area.”

Further definitions in the bill include “nudity” as “the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a full opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.”

“Sado-masochistic abuse” includes “flagellation or torture by or upon a person who is nude or clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound, or otherwise physically restrained on the part of one who is nude or so clothed.”

Finally, “sexual conduct” is intended to mean “any act of masturbation, homosexuality, sexual intercourse, or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks or, if such person is female, the breast.”

The section would not include materials that, “when considered as a whole and in the context in which it is used, possess serious literary, artistic, political or scientific value for minors.” However, that determination would also be made “according to prevailing standards in the adult community.”

The Idaho Library Association issued a statement related to HB 139 on its website, underscoring that libraries in the state “give thoughtful consideration to age-appropriate materials” that reflect “multiple, often contradictory, viewpoints so Idahoans may read freely and form their own opinion.”

“The Idaho Library Association supports the right of parents and guardians to guide their children’s knowledge, and we uphold librarians’ longstanding tradition of speaking openly with any concerned community member about material within our libraries,” stated ILA President Lance McGrath. “We maintain trust in the ability of librarians, library trustees and school boards to create collections that best serve their own communities.”

McGrath added that ILA hopes to offer testimony on the bill and meet with lawmakers “without fear of reprisal.”

The bill was printed and referred to the Education Committee.