SB 7 (ACT 436)
Sponsored by Sen. Heather Cloud
2023 Legislative Session
Signed into Law by Gov. John Bel Edwards
What is it? What Does it Mean?
On June 28, 2023, Governor John Bel Edwards signed into law Act 436, formerly SB7. Throughout the legislative process, members of our organization, along with librarians, former library workers, and citizens gravely concerned about the First Amendment issues this law represents worked hard, traveling to Baton Rouge repeatedly to testify before committees and members of the Louisiana legislature. We repeatedly warned lawmakers about the dangers of surrendering our freedoms to the fear of a threat that simply does not exist. Unfortunately, we were not successful, and the bill was passed and signed into law.
The law repeatedly refers to "sexually explicit content" allegedly being made available to children in public libraries, though the Attorney General's own report admits that the material it claims is "sexually explicit" "may fall short of material prohibited by criminal laws." In other words, none of the material his office examined fit the legal definition of obscenity. Arbitrary definitions of "obscenity" and questions about what makes something offensive are exactly why we have the 1973 Supreme Court ruling in the case of Miller v. California.
Furthermore, by Act 401 of the 2019 Legislature, signed into law by Governor John Bel Edwards, children as young as 16 can legally marry in Louisiana with their parents' consent. So are we now to believe that 16-year-olds are mature enough to get married, but might still need their parents' consent to get a library card? Or will we make an exception if you're on your second pregnancy at age 17?
It's criminal to withhold this kind of information from the young people who need it.
Be that as it may, this is, unfortunately, where we now find ourselves in Louisiana, so let's break down the law's requirements.
Worth noting, before we get into the weeds: Definitions of "digital content," "library patron," "sexual conduct," and "sexually explicit material," are included. Of course, by these definitions, biology books, animal husbandry books, and no small amount of textbooks would be considered "sexually explicit material," so, not a great job on the definitions here.
1) That libraries use "community standards for the population served" as their guide when acquiring materials through purchase or donation. No definition of what "community standards" means or who gets to define it. No definition of how "population served" is defined. This is language cherry picked from obscenity tests in precedent court cases and state obscenity statutes. Also no mention of the fact that libraries are exempt from the state statute.
2) That libraries create a tiered card system for minors, including options for a) cards which prohibit minors from checking out ANY material from a collection deemed to contain "sexually explicit material" and b) cards which prohibit minors from checking "out any library material that the library board of control has, through majority vote in an open meeting, identified as sexually explicit material."
Beyond the fact that we're talking about REQUIRING libraries to create cards which prohibit minors from checking out ANY materials from some libraries just because they have books that depict sex in them (Romance genre, anyone? Stephen King? How many countless classic books of literature?) WHO may I ask, is going to go through the THOUSANDS of books in every collection in every library in Louisiana to determine if they meet Jeff Landry's "sexually explicit" definition? Librarians? Newsflash: there aren't enough librarians in the state for that job. "Volunteers?" You may as well just remove every book in the library now, not to mention the fact that there are actually people paid to work there, thank you very much. Is Jeff Landry or Heather Cloud going to volunteer to come help out? I didn't think so.
So on top of an egregious act of lighting the Constitution of the United States on fire, this is a law that is literally unenforceable. It can't be implemented in one library, much less in EVERY library in the state. Throw in the penalty of holding up bond commission applications for non-compliance and this is a nightmare waiting to happen to a state ALREADY at the bottom of every education ranking.
There's also a requirement for another type of card - one that allows minors access to digital content. Of course, the library is required to "list in the library policy each digital content source accessible by minors that contains sexually explicit material."
Just as a point of clarification here - do you mean on their phones or on the library computers? Inside the building or just on library property? Because this is going to take a while.
3) The final requirement insists that libraries rewrite their policies for reconsideration requests, which is a procedure most libraries in Louisiana ALREADY have to field patron complaints about materials content. Apparently AG Landry, Senator Cloud, and Rep. Emerson feel the "contradictory policy" approach is the best way to tackle this one. The first provision is pretty standard - written notification to the patron with regards to the outcome of the reconsideration request, and the right to appeal to the full board of control. The second provision, though, says that requests for reconsideration of "sexually explicit" materials must go through the board of control directly. So...where are those appealed to? And why only the "sexually explicit" RR's? What about the glut of RR's regarding gun violence, for example? The answer is, of course, that the AG, Senator Cloud, and Rep. Emerson all know nearly every reconsideration request is filed for something (mostly LGBTQ themes and characters) that falls under his definition of "sexually explicit." Therefore, in effect, under this law every reconsideration request would be heard by the board of control. Not by a committee made up of librarians and board members, as most are now.
And again, the penalties for library systems which do not implement these ill-defined, unenforceable, unnecessary proposed laws, which amount to little more than political grandstanding and posturing during an election campaign, are quite steep. The withholding of local funds by parish councils and police juries. The refusal of the state bond commission to consider the applications for tax elections and loans by municipalities. All to feed the political ambitions of a group of politicians with Jeff Landry at their head.
Sadly, Act 436 is now the law of the land in Louisiana, and libraries must comply. It's important that library systems consult with their attorneys to make sure they don't lose funding, because defunded public libraries are, I believe, the ultimate goal of this far-right, anti-library, activist movement. It is critical, as we work to come up with solutions for reducing the damage these bills have inflicted, that libraries do their best to comply with the law while offering the widest range of services and materials for their patrons.
We will get our libraries back.
1. Most libraries in Louisiana already have the the provisions of these bills in place. Adding another level of state oversight and bureaucracy is not only unnecessary, but costly and difficult to enforce effectively.
2. The vast majority of materials targeted as "sexually explicit" by AG Landry's report are either sexual education materials, books with LGBTQ characters and themes, or books with BIPOC characters. ZERO meet the definition of obscenity as outlined by the Supreme Court in Miller vs. California, which the Attorney General has acknowledged.
3. The mandate of libraries is to serve ALL members of the community, not simply the majority, or even the minority who may be offended by certain books contained within the collection. Professional librarians are trained to develop public library collections with this standard in mind. To limit or punish libraries for adhering to this standard is to do a grave disservice to our communities.
4. Librarians do not act in loco parentis. It is solely a parent's responsibility to supervise their children while in the library, and to be aware, at all times, what their children are reading, in concert with their own family's values. To force the library to limit its collection in order to prevent some children from being "exposed" to books in the library infringes upon the rights of the community.
5. "Community standards," in Act436 are not defined, nor is a procedure outlined for how to define it or who shall do so. This leaves the term open to a wide-range of interpretations and likely litigation.