Repealing Obscenity Exemptions, Turning Up the Heat

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2021 Summit

Mary E. McAlister, Esq.

Child & Parental Rights, Campaign, Inc.

www.childparentrights.org

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What Are “Obscenity Exemptions”?

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States Protect Minors From Materials That Are Obscene or “Harmful for Minors”

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“Indecent [or harmful] for minors” means:

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1. Appealing to the prurient interest in sex of minors;
2. Patently offensive to prevailing standards in the adult community with respect to what is suitable material for minors; and
3. Lacking serious literary, artistic, political, or scientific value for minors.

“Harmful to minors” means that quality of any description or representation, in whatever form, of nudity, sexual activity, conduct, or excitement, or sadomasochistic abuse, when:

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1. To the average adult applying contemporary state standards with respect to what is suitable for minors, it:

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• Appeals to the prurient interest, when taken as a whole.. AND

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(ii) Portrays the description or representation in a patently offensive way. AND

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(b) Taken as a whole does not have serious literary, artistic, political, or scientific value for minors.

• Even if material would not be considered obscene or indecent for adults, a person could still face fines and/or jail time if the material meets the definition of “harmful to minors.”

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“Harmful to Minors” Laws Impose Fines, Jail Time For Providing Obscene/Indecent Materials to Minors

• States established exemptions for people in law enforcement, medicine who might need to use the materials as part of investigation of a crime or treatment of victims.

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• Some states also exempted scientists and universities from prosecution for use of materials for scientific/educational research by adults.

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• However, 43 states have gone further and provided that there is no criminal liability if the materials are used for “educational” purposes, as part of courses of instruction and/or in libraries in K-12 schools, not just university research.

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• Therefore, a person providing obscene/indecent materials to a child faces fines and jail time for “harming” the child, EXCEPT when the person is a teacher, librarian, lecturer, consultant, etc. providing the materials in an “educational” context.

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Basic Types of Obscenity “Exemptions” in 43 States

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• Affirmative defense: It shall be an affirmative defense that the act charged was done for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.

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• Exempt Institution: The purchase, distribution, exhibition, or loan of any work of art, book, magazine, or other printed or manuscript material by any accredited museum, library, school, or institution of higher education is exempt.

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• Employee of Exempt Institution: No employee, director, or trustee of a bona fide school, museum, or public library, acting within the scope of his or her regular employment, is liable to prosecution for a violation of this subchapter for disseminating a writing, film, slide, drawing, or other visual reproduction that is claimed to be obscene.

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• Employee or Third Party Contractor: A person does not violate this section if the person is, or is acting as, an employee of a bona fide public school, college, or university or a retail outlet affiliated with and serving the educational purposes of a school, college, or university and the material or performance was disseminated in accordance with policies approved by the governing body of the institution.

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• Library: The law does not apply to any public library or to any library operated as a part of any school, college, or university.

Brainstorm to help states sharpen their focus and process

Criminal:

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• Must be brought by government prosecutors seeking jail time and/or fines

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• Who would be prosecuted?

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• School board?
• Superintendent?
• State superintendent?
• Teachers?

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• How motivated will prosecutors be?

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• Not at the level of murder, rape
• Many understaffed
• Won’t want to be seen as “going after teachers”
• Have complete discretion as to whether to bring a case.

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• Little deterrent for rogue schools

Crafting A Strong, Focused Bill

How Will the Law be Enforced?

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Civil :

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• Can be brought by private citizens harmed by the materials (parents, adult children)

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• Can seek damages, court orders stopping use of the materials.

• Must include “private right of action” in bill language—stating that a citizen can bring a civil action to enforce the bill.

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• “Private right of action” can be implied if the bill language shows a clear intent to empower citizens to protect their civil rights and the bill would otherwise be meaningless.

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• No taxpayer funds, budget constraints for lawmakers

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• Would be effective deterrent for rogue schools—face large monetary payout & lawyer fees

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Balancing Accountability for Bad Actors with Protection for Good Actors

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• Administrators, Teachers, Librarians, Other Staff Who Knowingly Provide or Present Materials should face professional discipline: loss of position, loss of license.

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• Administrators Who Fail to Properly Vet Material , supervise teachers, otherwise exercise due diligence should face professional discipline.

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• Those who refuse to teach or present materials should be protected from losing jobs, demotion, other retaliation

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• Those who blow the whistle on the use of materials in their district should be protected from losing jobs, demotion, other retaliation.

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Use The Power of the Purse to Rein In Rogue Schools

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• Restrict funding if school districts provide or present harmful materials.

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• Refuse to fund purchase of materials from third parties who produce harmful materials.

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• Incentivize those who comply with the law with special projects grants, similar awards.

Crafting A Strong, Focused Bill

What Do We Do About Libraries?

If Exemptions Removed:

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• Books not simply transferred to library

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• Curbs discretion of librarians

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• Could lead to over-zealous exclusion of abstinence-based books

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• Additional opposition to bill from Library Associations, pro-LGBT groups

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• Possible slippery slope of censorship

Critical Issue: Who Decides What is “Obscene” & How?

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• “Contemporary Community Standards for what is harmful for minors”
• How do we define “community?” State, county, city, school district?
• Who sets the standards? “Experts” v. parents
• Accountability

If Exemptions Retained:

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• Books removed from school still accessible to kids, especially online

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• Unscrupulous librarians can make decisions w/ impunity

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• Parental oversight can be circumvented

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• Outside interests will continue to push agenda on children

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• Questionable books will be viewed as acceptable under “community standards”

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Legal Challenges in states with no “obscenity exemption” statute

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Legal Challenges in states with no “obscenity exemption” statute

• Define “Obscene” for Minors under State Law:

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• Find Statutes defining term and any court decisions interpreting them

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• Ask law enforcement—police investigators, prosecutors, for factors they use.

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• Show examples and ask for opinion.

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• With Definition in Hand, Gather & Preserve Evidence in the Community:

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• Library books, magazines, CDs, DVDs, online programs.

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• School materials, including curriculum, library books, magazines in library and classrooms, online materials

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• Other materials, e.g. social media posts, videos.

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• Present evidence to prosecutors, law enforcement, ask them to investigate, file criminal charges

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• Filing charges is purely discretionary—depending upon workload, attitude about harm of “obscene” materials, political pressure.

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• If no criminal charges brought, consider civil lawsuit

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• Will have to pursue indirectly if no explicit/implied private right of action under criminal obscenity statute.

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• Will have to allege that exposure to harmful materials caused harm to child, parent that caused personal injury or civil rights violation.

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• Will have to find parents or children who have been “injured,” i.e., exposed to harmful materials and suffered consequences—difficult in that cannot purposefully put child in harm’s way just to get standing to sue, cannot manufacture injuries.

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• Possible Title IX case in school context: Creation of a hostile educational environment resulting in denial of educational benefits. Difficult burden of proof—deliberate indifference, but if can prove awareness of materials and disregard of harm, then is possible.

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• Send demand letter w/examples of obscene materials and request that materials be removed or will face lawsuit. This puts on notice that obscene materials are in school and gives opportunity to do the right thing. If refuse, file lawsuit.

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Legal Challenges in states with no “obscenity exemption” statute