In recent years, politicians and activists have increasingly set their sights on libraries. While some have sought to strengthen these community institutions, more still have attempted to reign in what they see as access to troubling materials, particularly as it pertains to children.
Last week, for example, South Dakota passed House Bill 1239, which revises the criminal code to remove “affirmative defenses to dissemination of material harmful to minors” for librarians, teachers (including college and university professors), and museum educators.
Effectively, the existing law would no longer protect these institutions or individuals representing them, from being prosecuted for distributing “obscene materials” to minors. So if, for example, a librarian loans a book deemed “obscene” to a child they could face a $2,000 fine and a year in jail.
The bill, sponsored by Republican state representative Bethany Soye, passed the House last week and has moved on to the state senate. Despite a powerful Republican supermajority, however, the passage was narrow — 38 to 32 — with 26 Republicans joining the five of the House’s six Democrats in dissent.
Ahead of the vote, Soye attempted to assuage her colleagues of “confusion” and “fear” regarding the bill. She noted that “the bill itself is just removing language” from an existing law. Specifically, one that protects “a bona fide school, college, university, museum, or public library” from prosecution for disseminating material harmful to minors.
While there’s no set definition of what would be deemed “obscene” or not, she invoked the so-called Miller Test, a Supreme Court ruling established in 1973, which deems material as such if it meets all of the following criteria:
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
- Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law;
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
She used the examples of Michelangelo’s statue of David and the movie Titanic as works that would be protected for their artistic value. Soye went on to say that this bill simply applies to law evenly to public institutions as it would to private businesses or individuals. The Miller Test has indeed been held up as the standard method to determine obscenity, but it has also been criticized since its inception for its lack of clarity.
Critics of the bill argued that HB 1239 did nothing to provide guidance on what constituted obscenity or book policies in libraries and schools. Republican Drew Peterson pointed out that there was no language in the bill that would account for intent.
“If a librarian accidentally allowed a student to take an anatomy book home or an encyclopedia with a picture of a naked human being, they could potentially be charged with a year in jail,” he said. “That’s why I am voting no.”
Kevin Van Diepen, another Republican with a background in law enforcement, said he couldn’t imagine ever having to arrest a librarian for loaning a book to a child, going on to share that librarians in his district threatened to quit if HB 1239 passed. He also countered Soye’s characterization of the bill as not setting out to arrest anyone.
“The bill itself, if you read it, is a criminal act,” he said. “If you didn’t want [librarians] to go to jail, it wouldn’t be in there. … If you don’t want them to go to jail, take that element of the bill out.”
Will Mortenson, also a Republican, spoke “in very strong opposition” to HB1239, categorizing the bill as answering nothing but whether librarians should be jailed.
“We’re not growing the state, we’re not helping our people,” he said. “We’re locking up librarians in this bill.”
Everyday Library reports that in 2024, 123 negative bills surrounding books and libraries were introduced across 29 states. Of those, eight bills passed and seven were enacted (one was vetoed) while another 19 remain open or pre-filed. The remaining 96 failed or died, but new challenges have already begun in 2025. The American Library Association is currently tracking 92 bills that would adversely affect libraries and librarians as well as 22 “Right To Read” bills that would strengthen protections.
