Idaho House to consider bills amending 2024 ‘harmful to minors’ library law

"House Bill 795, would remove any mention that the material be considered “in the context in which it is used,” which Crane said the courts had said was “overly vague.” This committee advanced this bill with limited debate.

House Bill 819 makes several changes, including creating different standards for what would be considered harmful for public school libraries versus private school libraries. Previously, the requirements were the same for any school library.

The standard created for minors in private school libraries follows a long-standing legal test, called the Miller test, for what is considered obscenity that is not protected speech under the First Amendment.

The bill would prohibit promoting, making available or giving materials that are sexually explicit and, taken as a whole, harmful to minors. The definition of harmful would include depictions of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse that are “patently offensive.” The bill specifies that it would not be considered harmful if it had serious literary, political, artistic, or scientific value for teenagers between 13 and 17.

However, for public school libraries, materials that are “sexually explicit” could not be made available to minors.

The definition of sexually explicit includes “erotic depictions of nudity,” sexual conduct, or sado-masochistic abuse. The definition excludes diagrams about anatomy of scientific education, religious books, or content related to classical works for art.

Unlike the private school standard, the definition does not exclude any work that, when taken as whole, would provide serious literary or artistic value.

Idaho Solicitor General Michael Zarian said that courts have ruled that, when it comes to minors, the government can constrain “government speech” in a different way than private speech.

For example, he said, government entities may set school curriculum. He said he would argue that the new sexually explicit definition is “more of a bright line” than the Miller test. "