A lot of bad bills get introduced into the Legislature over the years. Most meet the fate they deserve—into the trash. But from time to time a bad bill becomes law because of timing. A Legislator catches a wave of public interest in a subject that’s in the news and takes advantage of that to introduce a bill, and suck in enough of his or her colleagues to pass a really, really bad bill.
That happened in the 1977 session of the North Dakota Legislature. An old law on the books from that now-distant session caught my attention this week. It’s Chapter 12.1-27.1-03.1. of the North Dakota Century Code. Its title is “Objectionable materials or performance–Display to minors–Definitions—Penalty.” It was introduced as Senate Bill 2417, introduced by Minot State Senator Hal Christensen. It says:
1. A person is guilty of a class B misdemeanor if he willfully displays at newsstands or any other business establishment frequented by minors, or where minors are or may be invited as a part of the general public, any photograph, book, paperback book, pamphlet, or magazine, the exposed cover or available content of which exploits, is devoted to, or is principally made up of depictions of nude or partially denuded human figures posed or presented in a manner to exploit sex, lust, or perversion for commercial gain.
And then it offers a definition:
2. As used in this section: a. “Nude or partially denuded human figures” means less than completely and opaquely covered human genitals, pubic regions, female breasts or a female breast, if the breast or breasts are exposed below a point immediately above the top of the areola, or human buttocks; and includes human male genitals in a discernibly turgid state even if completely and opaquely covered.
Good Lord! Turgid? In the North Dakota Century Code? Who knew we were talking about boners and nipples in our state’s lawbooks!
Well, the reason this came to my attention is that a bill has been introduced this year by Dickinson Representatives Vicky Steiner and Mike Lefor which proposes an amendment to Chapter 12.1-27.1-03.1. of the North Dakota Century Code. It’s House Bill 1205. Except this time they’re not just going after newsstands and grocery stores, they’re going after LIBRARIES!
Now let me say right up front, Vicky Steiner is a longtime friend and has been a generally good legislator over the years. But she seems to have gone astray. Maybe it’s the same phenomenon–honing in on a subject of current interest. There’s been some talk around the state on this subject. Perhaps she’s just jumping on the bandwagon. I hope she’s still a friend when she’s done reading this.
I don’t know Rep. Mike Lefor, but I knew his dad, Bob, who died about a dozen years ago. Bob was a pretty good golfer and our paths crossed on the Dickinson golf course a number of times.
Bob was a Montana boy who ended up spending his adult life, not coincidentally, I think, in Dickinson, right down the road from a town spelled the same as his last name, Lefor, North Dakota. The only difference in the names was in the pronunciation. The people in the town town always pronounced it “Lef-er.” Bob pronounced it “Le-for.”
The town named Lefor is famous for having the highest number of residents of Hungarian origin of any Zip Code in the United States. I don’t know who did the math on that, but I am pretty sure it is true, if you count the farmers nearby who use 58641 as their Zip Code to get their mail. How’s that for an interesting piece of trivia?
I don’t know if Bob and Mike are Hungarian, but they use the French pronunciation of Lefor—Le-for, with the emphasis on “for.”
Sorry, I don’t know how I got off on that tangent. Back to matters at hand. Here’s what Mike and Vicky are proposing in the new section of that law:
Public libraries prohibited from maintaining or promoting certain books.
1. As used in this section:
a. “Explicit sexual material” does not include works of art that, when taken as a whole, have serious artistic significance, or works of anthropological significance, or materials used in science courses, including materials used in biology, anatomy, physiology, or sexual education classes. The term means any pictorial, three – dimensional, or visual depiction, including any photography, picture, or computer-generated image, showing:
(1) Human masturbation;
(2) Deviant sexual intercourse;
(3) Sexual intercourse;
(4) Direct physical stimulation of genitals;
(5) Sadomasochistic abuse;
(6) Postpubertal human genitals;
(7) Sexual preferences;
(8) Sexual activity;
(9) Sexual perversion;
(10 Sex – based classifications;
(11) Sexual identity; or
(12) Gender identity.
I swear, that is one of the weirdest lists I have ever seen. Could even get the Century Code banned from some libraries. And then, after their definitions of naughty pictures, the Legislators say:
2. A public library may not maintain in its inventory or promote books that make as their primary subject the study of explicit sexual material.
And then, a couple more:
3. An individual who believes a public library is maintaining a book in violation of subsection 2 may submit a written request to the public library to remove the book from its inventory.
4. A public library shall remove the book requested for removal within thirty days of receiving the request.
Thirty days. Well, that leaves the door open for feisty Librarians to promote the books, which they believed the U.S. Constitution had given them the right to put on their shelves for library patrons to peruse. Maybe a notice in the paper:
“ATTENTION, Residents of Dickinson and Lefor: You now have just 30 days to visit the library and take a look at pictures of Tommy’s boner or Susie’s nipples.”
I know a lot of Librarians. They are nice people. They do good things, and bring good things to a community. They help us find books to read in our spare time, to do research for schoolwork, business, or personal interest, and show us how to access their library’s resources. They plan programs like story time for children, book clubs, or educational activities.
But if this bill passes, they’ll be spending their time developing a new policy for their library which “must include a procedure:”
a. For the development of a book collection that is appropriate for the age and maturity levels of the individuals who may access the materials, and which is suitable for, and consistent with, the purpose of the library;
b. For the public library to receive and evaluate a request from an individual regarding the removal of one or more of the books in the library collection containing explicit sexual material; and
c. To periodically review the library collection to ensure the library collection does not contain explicit sexual material.
The good news is, they’ve got a grace period to get it done. If it passes, the law doesn’t take effect until March 31, 2024. So they’ve got a year to get rid of their dirty books and write their policies.
This is such a bad bill. I wish Representatives Steiner and Lefor would have read former Supreme Court Justice Potter Stewart’s 1964 Supreme Court opinion: “I have reached the conclusion . . . that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it . . .”
Remember that? Maybe they could have skipped items 1-12 above. Maybe they would have just not introduced the bill. And maybe the bill is not even constitutional.
Most Librarians are not confrontational. But they better get there during this North Dakota Legislative Session, and get this bill killed. And we better help them. It’s the 21st Century. North Dakota Legislators, stop being morality police and do your jobs. This bill is not one of them.