West Virginia State Capitol

West Virginia legislators recently advanced a bill that would remove criminal liability protections for public library, museum, or school employees accused of displaying “obscene matter to a minor." Under House Bill 4654, which passed the West Virginia House of Delegates on February 16, in an 85–12 vote mostly along party lines, any adult who knowingly and intentionally displays obscene matter to a minor could be charged with a felony, fined up to $25,000, and face up to five years in prison if convicted.

West Virginia State Code defines obscene matter as anything “An average person, applying contemporary adult community standards, would find, taken as a whole, appeals to the prurient interest”; “an average person, applying community standards, would find depicts or describes, in a patently offensive way, sexually explicit conduct”; and that “a reasonable person would find, taken as a whole, lacks serious literary, artistic, political or scientific value.”

HB 4654 was the subject of a heated public hearing on January 24 and a lengthy meeting of the House Judiciary Committee on February 12, where supporters of the bill and West Virginia Library Association (WVLA) President Megan Tarbett answered a series of questions from committee members during testimony. The bill has been referred to the state Senate Judiciary Committee, where Republicans hold an overwhelming majority.

A CHILLING EFFECT

As with much of the legislation proposed in recent years that would place restrictions on public library materials, the bill’s supporters claim that it does not ban books. Rather, they say, it offers children the same protections that already exist outside library walls. “What this bill does do is stop obscene and pornographic material, sexually explicit materials, from being available to children in public taxpayer-funded spaces,” said Del. Elliott Pritt (R-Fayette), who is a social studies teacher.

“This bill is dealing with criminal conduct,” said Del. Brandon Steele (R-Raleigh), the bill’s sponsor, at the hearing. Librarians, museum workers, or teachers would only be liable if the material in question was provided to a minor “knowingly and intentionally.” He offered, as an example, the act of giving a minor a copy of Hustler magazine inside a library, adding, “If it’s a crime in the parking lot, it’s a crime in the building—period. I hope the chilling effect chills the pedophiles. We’re not going to create a safe space for them.”

However, Tarbett disagreed strongly with Steel’s reasoning. The exemptions that the bill seeks to strike down “are not there to protect someone doing something illegal in the building,” she noted. “If a staff member was handing actual pornography to children, I would call the sheriff myself.”

She added, “That example, isn’t germane to anything that we’re doing. We have reassured [the bill’s supporters] that every library’s policies may look slightly different, but we all already have procedures in place. We have reconsideration of materials forms, we have collection development policies, we have unattended children policies”—at her library, that covers anyone under 18.

Opponents of the bill pointed out that chilling effect would impact not only the theoretical pedophiles Steele hopes to target, but the library staff who select titles and help patrons. Those consequences could include self-censorship. “All it takes is one person wanting to make a name for themselves and arresting their local librarian,” said Tarbett. “Even if nothing is ever proven, that’s a huge knock to someone's reputation—even just the hint of that.”

And while the bill’s language alludes to the intentionality of a potential exchange of objectionable material, “it doesn’t make clear who is on the hook for it,” she pointed out. “Is it the collection development librarian who’s no longer at the library, who bought the book five years ago? Is it the front desk staff who checks out the book to the child? Is it the library director?”

During the hearing, Del. Shawn Fluharty (D-Ohio) stated that HB 4654 was “election year manufactured outrage,” and a bill designed to “ban books.” A motion was then made and sustained to disallow the use of the term “ban books,” or similar wording, during discussion in the House Chamber.

WHO DEFINES OBSCENITY?

Obscenity laws are notoriously difficult to enforce. In order to meet the federal definition of obscenity, material needs to pass the United States Supreme Court’s three-pronged Miller test, as defined in the 1973 case Miller v. California . The definition outlined in West Virginia code aligns with federal standards, but by invoking “community standards” and a “reasonable person,” both the Supreme Court and state definitions run into gray areas. Who gets to define for the entire community what constitutes obscenity, Tarbett wondered—does that mean content featuring sexual situations, adult language, or violence?

The ACLU of West Virginia noted on X (formerly Twitter) that proponents of the bill “insisted 4654 is only about stopping adults from showing obscene materials to kids, but continuously referred to materials that do not meet the definition of obscenity as examples of why the bill is needed.”

Of West Virginia’s 170 public libraries, most have tight budgets, Tarbett noted, and library staff select books that they already know will appeal to their patrons. “The long list of books that come up as objectionable, a lot of our libraries just don’t have any of them,” she said. And now “they’re going to be scared to ever order anything that could be considered objectionable.”

On its website, a statement from WVLA notes, in part, “There is an alarming degree of subjectivity in the wording of HB 4654 as to whether something is patently offensive. Again, this vague definition opens the door for attacks and legal challenges on any book, periodical, program, or other aspect of library service that some members of a community may not agree with.”

The Association of Art Museum Directors has also issued a statement condemning the bill, stating “jeopardizes the ability of art museums and their professionals to curate and display diverse and challenging artworks that are essential for fostering creativity, critical thinking, and an educated citizenry.”

Before debate began at the February hearing, Del. Mike Pushkin (D-Kanawha) proposed an unsuccessful amendment that would have kept criminal liability protections for teachers in place, pointing out that the bill as written could target health instructors teaching sex education classes. Pushkin’s amendment failed by voice vote.

“Even if no one is ever convicted, just the possibility of being charged for something like this is scary,” said Tarbett. “It is going to have indirect effects on staff retention, future fundraising possibilities, plus erosion of community trust.”

Those pushing HB 4654 forward, she added, are members of the community as well, and she would like to be able to work with them. “But there are ways for all of us to have these discussions without terrifying our one-person libraries here in West Virginia.”