House Bill 1315: Public School and Public Library Content Restrictions

March 9, 2023March 30, 2023 Bill Tracker

Latest Action

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On March 29, the Senate and the House each voted to adopt the second conference report for HB 1315. The second conference report removes entirely the section of HB 1315 that would have required any entity publishing or distributing “material harmful to minors” on the internet to verify the age of any individual accessing the content, and to restrict this content from any individual under the age of 18.

The second conference report for HB 1315 instead only contains a separate provision that requires entities who provide “digital or online resources or databases” to students in public school districts or public libraries to restrict students from accessing certain content. In particular, students would be restricted from accessing materials deemed to be “obscene” (as defined by HB 1315) or “sexually oriented” (as defined by § 97-5-27). While the conference report for HB 1315 tightens the definition of “obscene,” the statutory definition of “sexually oriented” remains so broad as to constitute a digital book ban of any literature that so much as discusses sexual intercourse—restrictions that could feasibly ban literature ranging from Shakespeare to George Orwell’s 1984 to perhaps even the Bible.

In addition to tightening the definition of “obscene,” another notable change in the conference report includes tasking the Attorney General with investigating compliance with the law. Previous iterations of the bill had alternately tasked the State Auditor with this responsibility, or not specified at all who would be tasked with this responsibility.

HB 1315 is now awaiting the Governor’s signature.

Explanation of the Bill

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As amended in the conference report, House Bill 1315 would prohibit public schools and public libraries from offering “digital or online resources or databases” if any of the resources available contain content that is deemed “obscene,” “inappropriate,” or “sexually oriented.” If these provisions were intended only to prevent library users from searching the internet for objectionable content (i.e., pornography), the bill far exceeds that goal as it would lead to a wide-ranging digital book ban. It may also make it burdensome for public schools and libraries to use any digital content, as they would be charged with determining whether a vendor’s labeling of mature content complies with the vast and vague definitions in the law. Finally, because physical books are now cataloged using digital databases, it is also unclear how this bill affects online card catalogs, particularly in public libraries.

The banned content is extensive and includes more than objectively repugnant material such as child pornography, which is not found in any library vendor’s database as this content is illegal. However, the statute also bans content that is “sexually oriented,” the statutory definition of which is excessively broad, including anything relating to “homosexuality” or “sexual intercourse” generally. Under HB 1315, any books or other content discussing these topics would be effectively prohibited from public schools statewide.

HB 1315 was initially introduced as a separate measure to require any entity publishing or distributing “material harmful to minors” on the internet to verify the age of any individual accessing the content, and to restrict this content from any individual under the age of 18. This provision is no longer included in the conference report for HB 1315.

Banned Content at Public Libraries and Public Schools

Prohibited content under HB 1315 includes child pornography; “materials that depict or promote child sexual exploitation or trafficking”; “obscene” materials; “inappropriate” materials; and materials that are “sexually oriented.” While child pornography and the promotion of child sex trafficking is obviously abhorrent (and such content is already illegal to possess or distribute), the definition “sexually oriented” materials is excessively broad.

Under § 97-5-27 (an existing code section that is referenced by SB 2346 as amended), materials considered “sexually oriented” include any “representations or descriptions” of

• Homosexuality or “lesbianism”
• “Excretory functions”
• Sexual intercourse
• “Physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or the breast or breasts of a female for the purpose of sexual stimulation, gratification or perversion”

The general censorship of any content including descriptions of sexual intercourse could result in banning wide swaths of classic and contemporary literature, from Shakespeare to George Orwell’s 1984 to perhaps even the Bible The statutory definition of “sexually oriented” would also effectively ban any LGBTQ-related content.

HB 1315 would also effectively ban any literature deemed “obscene,” as defined by meeting all three tenets of the Miller test, which the U.S. Supreme has established as a determinant of whether speech can be labeled as “obscene,” and therefore not protected by the First Amendment:

• “To the average person, applying contemporary community standards, taken as a whole, it appeals to the prurient interest, that is, lustful, erotic, shameful, or morbid interest in nudity, sex, or excretion; and
• The material taken as a whole lacks serious literary, artistic, political or scientific value; and
• The material depicts or describes in a patently offensive way, sexual contact…”

Previous iterations of HB 1315 had restricted materials that met individual components of the three-pronged Miller test, such as any material lacking “serious literary, artistic, political or scientific value.” Using these components individually would have banned a much wider swath of material; as such, the conference report for HB 1315 correctly uses the Miller test in its definition so that materials can only be deemed “obscene” if they meet all three components. Because the “obscene” definition is now much narrower, most censorship concerns now revolve around the restriction of any “sexually oriented” materials.

Verification of Compliance

Under HB 1315, the entity or vendor providing “digital or online resources or databases” used by public schools or public libraries would be required to verify that all resources comply with the content standards listed in the bill. Failure to verify compliance would require the school district or public library to withhold payment to the entity or vendor and, if the entity or vendor continues to fail to comply, to terminate the contract. The entity or vendor would be required to provide the school district or public library with a complete refund. The State Attorney General would be tasked with confirming compliance by school districts and public libraries.

Regardless of which entity or vendor provides “digital or online resources or databases,” HB 1315 as amended would primarily affect the ability of public schools and public libraries to provide content to students. Virtually all resources provided by a public school or public library are either digital content offered online or physical content cataloged using a digital database. All of these resources would be subject to the prohibitions in HB 1315. In order for a public school to comply with state law under HB 1315, they would be required to remove these resources. (Public libraries would not necessarily have to remove these resources entirely, as the restrictions only apply to minors).
Even after a likely purge of physical book collections, public libraries and public schools alike would be tasked with finding vendors for offering online services that would allow libraries and schools to hand-pick available content. They would also be tasked with the onerous process of hand-picking that content. Some services, like Libby, allow libraries to choose which ebooks and audiobooks to provide. Others, such as myON, offer a library of content which is not customizable. While myON, for example, is geared toward younger audiences, the expansive restrictions under HB 1315 are bound to prohibit at least some of the thousands of digital books and news articles offered through this service.