Boise libraries prepare for more liability under ‘harmful’ materials law. What’s changing?

Libraries in the Treasure Valley are reassessing their policies and preparing for how they will comply with a new law that opens them up to lawsuits if they provide materials that lawmakers deemed are “harmful” to minors.

Boise-area libraries said they plan to change their procedures around how patrons challenge books and continue to monitor impacts of the new law, which takes effect July 1.

“In the profession, there is a lot of concern,” Mary DeWalt, the director of Ada Community Library, told the Idaho Statesman. “People are really confused because the law is very vague. And so people across the state are thinking, ‘Well, how does it apply here, and what does this exactly mean?’”

The law bans school and public libraries from distributing materials considered “harmful to minors,” which are defined as having descriptions or representations of nudity or sexual conduct that “appeals to the prurient interest of minors as judged by the average person” and that are “patently offensive to the prevailing standards in the adult community with respect to what is suitable for minors.” Sexual conduct includes homosexuality.

Under the new law, parents or minors can submit a request for a library to relocate material they considered harmful to an adult section. If the library doesn’t move the material within 60 days, the requester can then sue the library and receive $250 in statutory damages, plus additional damages and relief.

Libraries across the Treasure Valley told the Statesman their boards are reviewing their policies and updating the forms patrons use to challenge books to be in compliance with the law.

They have no plans to take more drastic measures. The Donnelly Public Library, a small library located about two hours north of Boise, told the Statesman it would transition to an “adults-only library.” Children can still use the library if they’re accompanied by a parent, as well as take part in after-school and summer programs if parents sign a waiver.

“Our materials would not be seen as obscene,” DeWalt said. “We’re not reacting at this point, thinking that we’re gonna get lots of these forms and get sued, but we’ll just take things as they come.”

Diverse viewpoints ‘are all protected speech’

The Meridian Library District similarly is focused on updating its reconsideration policy. The district was at the center of debate over harmful materials last year, when a group attempted to dissolve the library taxing district over concerns about sexually explicit materials. That effort ultimately failed, and dozens of people rallied in support of the institution.

Meg Larsen, who chairs Meridian Library’s board, said the library district has had to spend money on legal counsel to go through its reconsideration forms and ensure compliance with the law. The board will likely approve the changes later this month.

“Our community here in Meridian have been overwhelmingly supportive of library services. Our library is just a beloved institution,” Larsen said, adding she doesn’t expect that to change under the new law. “I don’t think (the law) it’s necessarily reflective of what our community as a whole wanted to see.”

For the Boise Public Library, officials changed its challenging policy to allow the board more time to consider challenged material so that it can comply with the 60-day deadline from the new law.

Its procedure currently includes several steps before it reaches the board that may take longer than the 60 days the law allows for. But starting July 1, if a book is challenged, the library district will create a case file, give the library director 28 days to provide a written response, and then give the library board 32 days to review the director’s decision, Boise Public Library director Jessica Dorr said. If someone doesn’t consider the library’s response satisfactory after the 60 days, at that point, the person could take legal action.

Dorr said the library district has no obscene materials in its collection. It has been receiving questions from the public about whether it will restrict access or create an adults-only section. It has no plans to do either.

“I think it’s really important that we remember that diverse viewpoints, stories and characters are all protected speech,” Dorr told the Statesman. “And libraries have the discretion to curate the collections. But this discretion cannot be used to silence or muffle viewpoints with which some library users or the government disagrees.”

Stephanie Bailey-White, the state librarian for the Idaho Commission for Libraries, told the Statesman the organization has advised libraries to review their collection development and policies on challenging library materials. But she added that the commission is reminding libraries and school districts that they “must be mindful of the First Amendment rights of minors and adults.”

“If staff or boards consider relocating or removing books, they should follow library policies that are in place to ensure they are not creating any additional liabilities,” she said in an email.

Library officials fear chilling effect on books

Idaho lawmakers for years tried and failed to pass bills targeting libraries before this year’s bill made it to the finish line.

Legislators and conservative lobbying groups have proposed the bills over concerns libraries in the state were distributing pornography, despite a lack of evidence. Libraries have denied offering materials to minors that would fit that definition.

Last year, Gov. Brad Little vetoed a similar bill that would have let families receive $2,500 in damages each time a child accessed materials defined as harmful by the state. Little in his veto letter said he agreed with the intent but feared “unintended consequences” of the bill, including a concern that libraries would be forced to close because they couldn’t afford a “bounty system.”

But Little signed this year’s bill into law.

Idaho Republicans’ push to limit materials offered to children joins a growing movement across the country to restrict minors’ access to books, especially those on LGBTQ+ people or topics.

Legislatures in several states have passed measures in recent years that open librarians and school employees up to fines or jail time for distributing materials deemed harmful to minors, according to an analysis from The Washington Post. One law in Arkansas, which was temporarily blocked last year by a federal judge, would have carried a felony charge and a possible sentence of up to six years in jail and a $10,000 fine for librarians found to have violated the measure.

DeWalt told the Statesman library staffers worry about a chilling effect. Regardless of whether patrons challenge more books, the fear of liability could impact the books that libraries hold, she said.

“Even if no one overtly takes any action, in the back of their mind, they may be thinking, ‘Oh, I’m not going to add this book because it might be problematic,’” she said. “Maybe that’s the actual intent.”