Idaho’s new library bill would target books with gay characters for censorship | Opinion
Efforts at censorship have not ended in Idaho, as the House State Affairs Committee demonstrated Monday. The committee agreed with no debate to introduce House Bill 139, which would put every school and library in Idaho immediately in the crosshairs for a raft of civil lawsuits.
The supposed intent of the bill is to prevent libraries and schools from giving porn to kids, something no one has ever documented happening.
Though at first glance the bill seems less harsh than last year’s House Bill 666, which would have subjected librarians to potential jail sentences, it has the potential to be even more chilling for free intellectual inquiry.
The essential problem is how vague the category of obscenity is. What counts as potentially obscene content is incredibly fuzzy, so the incentive is to censor whenever in doubt.
The bill defines sexual conduct to mean “any act of masturbation, homosexuality, sexual intercourse, or physical contact with a person’s clothed or unclothed genitals... .” The inclusion of “homosexuality” alongside “masturbation” and “sexual intercourse” here means that mere verbal expressions of love between two women or two men could be counted depictions of sexual conduct, though equivalent material involving heterosexual couples is not.
So, for example, a public library has a serious potential legal liability if it carries a copy of Plato’s Symposium. That book discusses homosexual love (in the abstract), so it is a depiction of sexual conduct, indistinguishable from, for example, nude images under the terms of the bill.
Maybe a library can keep its copy of the Symposium, but put it in the adult section? That would be risky.
The bill does not require that a library or school had the intent of offering forbidden content to minors. All that’s required to violate the act is that a library “make available” the material, a term with no further definition. So does putting a book in the adult section, where kids can physically go as libraries rarely employ bouncers, count as making it available to children? Probably.
What if a kid is smart enough to find their way around a school’s internet content filter? (Lots of kids are this smart.) Is the school district potentially liable for all of the content on the internet? Quite possibly.
Worst of all is the bill’s enforcement mechanism, which uses the increasingly familiar enforcement-by-bounty-hunter-lawsuit tactic. If a library or school violates the vague, squishy terms of the bill, parents can get a court judgment of $10,000 per incident.
So here are the incentives for an unscrupulous parent: Send your kid in to hunt down 10 books that mention gay people. You now have the potential for a $100,000 payday. Tell them to bring three friends, and all four families can get paid the same amount.
The sponsors will claim that the bill won’t ban works like the Symposium because they have serious artistic value, and so are exempted. But that isn’t really true.
The bill says that it isn’t enough for a book to have serious value, it has to have value for minors specifically. And whether it does have value for minors is up to “prevailing standards in the adult community with respect to what is suitable material for minors” — whatever that means.
This is the kind of language that some lawyers will love because nobody knows what it means. That allows them to argue about it for hours, and they are paid by the hour.
But how is a community library, which doesn’t have a bunch of money for lawyers, supposed to reliably protect itself from the possibility of being sued and losing a large judgment and attorney fees? Only by choosing the narrowest possible set of books to keep on hand, making sure that none of them include any reference to same-sex relationships, or anything to do with romantic relationships, or anything having to do with anatomy, or anything even vaguely related to these subjects.
That is the set of incentives the bill is designed to promote: a regime of self-censorship through legal terror, and one that specifically aims to censor homosexuality.
This story was originally published February 15, 2023 at 4:00 AM.