House of Delegates passes book ban, says it shouldn’t be called that

By Matthew Young, RealWV

CHARLESTON, W.Va. – “I suppose we could take the opposite side of those who oppose this bill, and we could back off and just allow anything to be given to our children under the cover that we cannot define what is ‘obscene.’ What that means is anything could be given to our children – that is the end result of the opposing argument.”

That’s what House Judiciary Committee Chair Tom Fast, R-Fayette, said Friday to close debate on HB 4654, a highly contentious bill which seeks to remove legal protections from schools, museums, and public libraries for allowing minors to access certain “obscene” material. Those opposing the bill argued that “obscene” has different meanings to different people, and there is no established arbiter of its definition. Those in favor contend that “obscene” is clearly defined by W.Va. state code. 

“That’s really the impetus of where this started – this disagreement about what’s obscene and what’s not,” Del. Joey Garcia, D-Marion, said while speaking from the House floor. “Without this exception (legal protection), who is it that’s going to be attacked? The librarian, a staff member, a board member – we don’t know.”

“In reality, there can be very different definitions of what’s ‘obscene,’” Garcia continued. “Some people think that certain ways of life and certain groups of people are just obscene, we’ve heard that. All it takes is a prosecuting attorney, or someone else who wants to make a statement, political or otherwise, to ruin somebody’s life.”

Del. Joey Garcia, D-Marion, speaks in opposition of HB 4654 in the House Chamber on Friday.

West Virginia code separates the definition of “obscene matter” into three parts:

  • An average person, applying contemporary adult community standards, would find, taken as a whole, appeals to the prurient interest, is intended to appeal to the prurient interest, or is pandered to a prurient interest; (prurient: having or encouraging an excessive interest in sexual matters)
  •  An average person, applying community standards, would find depicts or describes, in a patently offensive way, sexually explicit conduct; and
  • A reasonable person would find, taken as a whole, lacks serious literary, artistic, political or scientific value.

This definition was put into code by the Legislature in 1974. 

“I’ve heard it explained that, ‘Well, I think this bill is okay because […] they’ve got to prove these three things, and a jury has to make that decision on the finding of fact,’” Garcia said. “But the chilling effect is when the charges are brought. […] That is a real issue here because the moment that somebody’s even being looked at and complaints are filed, that’s where the chilling effect starts.”

“I brought up in committee Anne Frank’s diary,” Garcia continued. “A 13-year-old girl talking about her experiences hiding from the Nazi’s during the Holocaust. I don’t know how long it’s been since you’ve (House members) read it, but there are passages in there […] where she talks about puberty. She talks about her feelings – sexual feelings, things like that. Is this going to reach to Anne Frank’s diary? There are a number of people who have argued and said, ‘Well, no, no, no.’ But all it takes is one person who says yes.”

“It doesn’t matter if it gets to a jury,” Garcia added. “At that point that those charges have been filed, you are ruining the life of somebody.”

Before debate began on the bill proper, Del. Mike Pushkin, D-Kanawha, proposed an amendment which would protect school teachers who teach county and state-approved curriculum from prosecution. After Fast spoke in opposition of Pushkin’s amendment, the proposal was voted down. 

Once debate on the full bill was underway, Del. Shawn Fluharty, D-Ohio, referred to HB 4654 as nothing more than “election year manufactured outrage,” and a bill designed to “ban books.” 

“It’s a book banning bill, that’s what it’s doing,” Fluharty said. “It’s squashing the First Amendment.”

As Fluharty spoke, a motion was made and sustained to disallow the use of the term “ban books” (or similar wording) while discussing the bill in the House Chamber. 

“Well if a book is challenged and then removed, I would argue that it’s then banned,” Fluharty noted. “But that’s fine, because what we’re doing here is something you read about in third-world countries, and now it’s going to be a headline in West Virginia. I will proudly be voting no.”

Speaking in favor of the bill was its sponsor, Del. Brandon Steele, R-Raleigh, who said the idea for HB 4654 was presented to him by librarians in Raleigh County, further adding that his “prosecutor friends” believe the legal protections afforded to libraries, schools and museums should be removed.

“This bill is dealing with criminal conduct,” Steele explained. “But what we have been bringing up is the library process of removing books. Those are two different things. […] I think the debate on both sides confuses this.”

Bill sponsor Del. Brandon Steele, R-Raleigh, speaks in favor of HB 4654 in the House Chamber on Friday.

Steele argued that the definition of “obscene” in state code is speaking directly of pornography, and the bill would not be used against books such as the Bible, or the Diary of Anne Frank. According to Steele, prosecution would only occur if a minor was “knowingly and intentionally” provided pornography. Steele cited intentionally providing a minor with “Hustler Magazine” inside a library as an example of what would become a prosecutable offense.

“This bill, it’s not going to apply to some books that people on the pro-side of this think that they’re going to get rid of,” Steele continued. “When you define ‘prurient interest’ like we have – that it’s sole purpose is sexual arousal and sexual gratification – I hate to tell some of my (Republican) colleagues in here that there are going to be some books that you don’t like that are not going to fall into that category of a crime.”

“Every library pretty much has a process for concerned citizens, parents, to go in and say, ‘Hey, we don’t think this is appropriate. It needs to be moved to another section just for adults. We don’t think kids should have access to it,’” Steele noted. “Libraries have dealt with that, but that’s not talking about prurient material – prurient material could easily just be called pornography.”

HB 4654 passed the House by a vote of 85 to 12. All Democratic House members voted against passage, as did Del. Joe Statler, R-Monongalia. The bill will now be referred to the Senate for further consideration.

RealWV will provide updates regarding the status of HB 4654 as additional information becomes available. 

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