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>>The legislature adjourned Thursday after Governor Brad Little vetoed a controversial bill concerning libraries and content.

But that isn't the end of the conversation around libraries and who should monitor what kids are reading.

I'm Melissa Davlin.

Idaho Reports starts now.

Hello and welcome to Idaho Reports.

This week, we take a look at the months long debate over collection policies in Idaho libraries and what more, if anything, those libraries should do to prevent minors from checking out potentially obscene materials.

Markie McBrayer from the University of Idaho's Department of Politics and Philosophy, joins us to discuss the history of morality politics and civil enforcement mechanisms in law.

Finally, Katie Ball from the University of Idaho's College of Law.

Representative Brent Crane and Meridian Library Board trustee Jeff Kohler discuss civil enforcement, as well as what we may see in coming months in the library debate.

But first, let's get you caught up on the week.

The legislature adjourned for the session on Thursday after taking a recess to wait for Governor Brad Little to sign or veto any bills delivered to him at the end of March.

Ultimately, Little signed most of the bills in front of him.

We have a rundown online.

You'll find the link at IdahoPTV.org/IdahoReports The governor did veto a bill that would have allowed parents to sue a school or public library for $2,500 if a library didn't take reasonable steps to prevent a child from checking out materials deemed obscene.

The bill would not have banned any books.

We'll have much more on that proposal later in the show.

On Thursday, the House failed to overturn that veto, falling just one vote short of the two thirds needed for an override.

Following adjournment, House Republican leadership told reporters they were pleased with what lawmakers had accomplished this session, how they handled Little's veto last week on portions of the property tax relief bill and the House coming close to overriding the veto of the library bill.

I know there are some people who are ecstatic that the veto override failed.

I know that there are some people who are incredibly frustrated.

It comes down to, you know, what your personal belief is on how you're going to take that vote.

But I think that that's what's important.

And I think we saw that specifically with the property tax bill, was that the legislature has, you know, kind of asserted its independence and said, wait, this is what we think is right for Idaho.

This is what our constituents want.

So this is what we're going to do.

we're going to do.

It goes like that.

>>Votes like that are tough.

When you have, what, three fourths of the caucus want to override and you miss it by one.

But overall, this session, you saw the legislature try to take back some of the power that I think that we have lost through the years to the executive branch.

>>We invested significantly into public education and increased teacher salaries.

Um classified staff, we increased the pay for classified staff.

>>I think the sideboards put on the Idaho Launch program will make it even more successful than it was in the initial bill.

And so I think that that's an important workforce training program that we put forward.

Additionally, we put money into high school CTE to try to make sure that all these Idaho kids are as successful as possible.

So the combination of the two programs, I think are are really going to do well for Idaho.

>>Democratic leadership also applauded this sessions historic investments in education.

However, the minority party was disappointed with kitchen table issues being overshadowed in their eyes by social and moral debates.

>>Even in the face of a dismal record in this legislative session.

I still remain hopeful about the things that we did accomplish that Democrats led the way on.

And I want us to focus on those efforts to create Idaho, where our kids really want to stay in state.

I've heard our governor say it over and over.

We want kids to be able to stay here and want to live here.

But what I saw this last session was not something that was inviting for kids and families.

And in fact, we're hearing them wanting to leave.

wanting to leave.

They had to call, >>They had to call, write, testify almost daily to fend off wave after wave of assaults on their basic rights.

And another really sinister trend that we saw take off this session was this trend toward placing private bounties on people, which is, again, dangerously starting to create this almost North Korea style informant, state of turning neighbor against neighbor and incentivizing these potentially frivolous and abusive lawsuits.

>>That vetoed library bill wasn't the first time lawmakers have brought up concerns over minors being able to access potentially obscene materials in libraries.

The debate over whether libraries or parents should be responsible for what children read isn't limited to the state house either.

Over the last several months, Idaho Reports has followed discussions between community members and local library districts across the state and what might come next in the debate.

In early 2022, the Bonners Ferry Library began getting complaints about children potentially accessing obscene materials from their shelves.

>>Our Board of Trustees received from a member of the community a list that contained about 400 books that had been being passed around the entire state of Idaho and wanting to make sure that none of those books ended up in our library.

>>Some of those books included well-known titles like Gender Queer and Sex is a Funny Word.

>>We don't have any of the books on that that list.

But on that list is even a book of who was Frederick Douglass.

So all of the books So all of the books on that list are either LBGTQ+ themed critical race theory or Black Lives Matter.

>>Libraries already have collection policies in place that help guide them on which books to add to their shelves.

>>It's very important to note that we don't have these titles in our collection.

these titles in our collection.

We don't have any intention of adding.

I mean, I would add, who is Frederick Douglass without even a hesitation, to be honest.

That's a great series of books.

But, But, you know, some of the more controversial books and it is just because we are a conservative community we are a conservative community and I try to be sensitive to what is going to be to what is going to be read here.

We have a limited budget and we have limited shelf space.

So there is also that fiduciary responsibility.

If I get a book in that's going to sit there, it comes out of our budget and it takes up our shelf and nobody's going to read it.

Well that's counter productive.

>>We do consider, you know, you know, the popularity of these titles, the authors, when it was published, if it's relevant and I think.

I think there are some things today and we've all seen that we aren't as comfortable as talking about anymore.

But that doesn't mean that it doesn't have an important historical significance.

And so we do look at those works as a whole.

If we were to get, you know, any kind of, you know, challenge or reconsideration request.

reconsideration request.

>>And if a patron wants materials removed from the shelves or moved to a different section.

Libraries have a process to consider that request.

>>We relook at all of our policies every year and make changes as needed, consult with outside areas as needed.

And we're going through our policies right now and doing that.

But there is a process where, you know, they would fill out some information about, you know, what material they had.

They would like to be reconsidered why they think that.

And then there is a committee that that goes through to read over that record.

And then that patient, of course, does receive word back on what that decision is.

>>But sometimes patrons don't agree with the outcome and aren't satisfied with the process itself.

That frustration has come up during Meridian Library board meetings.

>>Get Out!

>>Using the LGBT community to groom, our children!

Shame on all of you!

Shame!

you should >>When we whether as parents or simply as concerned citizens, try to broach the issue of graphic sexualized materials in our library that seem to be targeted towards our children.

We are impeded by a mountain of bureaucracy that will make any normal person's head spin.

When we speak out, we are referred to in the most uncharitable terms.

We get labeled as extremists because we want to protect the children.

protect the children.

>>They want us to act as a They want us to act as a guardian or in some sort of parental capacity.

So what I told them was, we can't do that.

First Amendment rights are clearly defined by the Supreme Court to extend to children.

to extend to children.

So while you can restrict access to materials for your own children; To ask a library or a librarian to ask a library or a librarian to step in, in that capacity, to step in in that capacity when we're tax funder paid.

Now, I'm I'm a representative of the government and you're asking me to infringe upon a child's First Amendment rights that is illegal.

I cannot and will not break federal law.

and will not break federal law.

That fell so flat.

That was so inflammatory.

that was so inflammatory.

>>This conflict isn't unique to Idaho, and it caught the legislature's attention.

In 2022, the House passed a bill that would hold librarians criminally liable if they allowed children to check out materials deemed obscene.

That bill didn't get a hearing in the Senate, but this year, a bill to make libraries, not librarians, liable in civil court passed both the House and Senate.

Governor Brad Little vetoed that bill.

But had it passed, it wouldn't have just affected libraries budgets, but their insurance policies as well.

And that's by design.

According to Blaine Conzatti, of the Idaho Family Policy Center, one of the bill's major supporters.

major supporters.

>>Now, here's where things get kind of cool with the way we've designed this bill.

we've designed this bill.

Insurance companies don't want to pay out damages.

They don't want to defend their clients.

And so what they will do is they will change their policies.

The policies that the schools or the libraries are required to abide by if they're going to be insured by the by the carrier.

And those policies are going to say, hey, you have to remove these books.

remove these books.

Right.

And it's going to be the insurance companies that are going to create the policies that end up driving the schools and driving the libraries to finally pulling these books off the shelves because they don't want to be exposed to liability.

And here's what's going to happen.

If a school or if a library keeps making this material available to kids, they're going to lose their insurance coverage.

We've already seen that up in Boundary County.

Yeah.

>>But the and down, Harry coming out.

But the bigger bigger insurance policies that cover governmental entities and those in the private market, we've been told, can go can go anywhere from $20,000 to $50,000 a year.

So when your annual budget is just under $500,000 is just under 500,000, that's a significant portion of your budget that now has to be allocated to just being able to keep the doors open.

>>The library in Bonners Ferry ended up keeping their state insurance, but not their director.

Who resigned last year after months of the controversy.

>>It's difficult when you can't have a conversation with somebody and logically explain explain what you're doing what you're doing and still be called a liar and a groomer and a pedophile.

It's just this is not what I signed up for.

I wanted to be a library director.

I wanted to work with this amazing staff.

I wanted to settle into my community.

I didn't sign up to do this to be afraid in my front yard.

>>In his veto letter, Governor Brad Little specifically cited that civil enforcement mechanism, which allows parents to sue for $2,500 if libraries don't take reasonable measures to prevent children from checking out materials deemed obscene.

Little called it a library bounty system.

But this isn't the first time we've seen that civil enforcement mechanism in law.

Nor is it the first time that concerns about obscenity in public spaces have come up.

In late March, I sat down with the University of Idaho's Markie McBrayer at KUID in Moscow to discuss the history of morality politics, as well as laws that use civilians to enforce policy in civil court.

Thanks so much for joining us today.

I wanted to start by talking about the goal of these pieces of legislation.

So libraries and abortion and more recently, things like drag shows have been the subject of scrutiny for years in some conservative circles.

So so the theme isn't anything new?

>>No, no.

So in political science, like we don't necessarily have a data set or anything official that we can point to about book bans or anything of that nature.

But we do have a field of study in policy studies called like morality politics and morality policy.

And a lot of that talks about when you when like how you would deploy like how you would deploy morality politics in policy and oftentimes in policy like if we were to talk about like Medicaid, that's a very technical issue.

By contrast, things like morality politics don't necessarily require the same level of expertise because it's more about my view of how things should be versus how your view of things should be.

And you don't need expertise to debate that.

And so oftentimes morality policy doesn't necessarily have policy aims and objectives that are measurable in the same way that we would see for something more technical like Medicaid, like education, that kind of thing.

>>Well, and that makes sense because every individual and every family has their own values, whether they consciously think about it or not.

>>Yes, exactly.

And so oftentimes you even see people without a lot of technical expertise in policy sort of come into these debates because everyone has that kind of expertise.

Yeah.

But what we're seeing lately >>But what we're seeing lately in the Idaho legislature and also elsewhere is this novel enforcement approach where private citizens can sue to enforce the law.

Have we seen this kind Have we seen this kind of civil enforcement mechanism before?

>>So, yes, the short answer is yes.

This is, of course, not a new mechanism, a policy mechanism or policy tool in place.

We see uh hospital desegregation in the 1960s used with this tool.

We also have seen it more recently with environmental politics.

So you can have individuals sue individuals sue individuals or organizations for violating environmental standards.

That is not new.

However, I think what is new about this, what is novel about this, is that it's being applied in the morality politics sphere like we were talking about earlier.

And so we see Texas, what is it, 2021?

I think their Senate Bill 8 passes and we're seeing it sort of spread across the US, including to Idaho.

>>And Senate Bill 8 for those who aren't familiar with it, is the the legislation that would allow private citizens like the father of a fetus to sue anybody who aided a woman seeking an abortion.

>>Yes.

And that can include both providers, but also anyone who assisted.

>>We have more with Markie McBrayer online, including analysis of the bill concerning public obscene shows that died without a hearing this past session.

You'll find that full interview at YouTube.com/IdahoReports.

Joining us to discuss more about that civil enforcement mechanism in the bills this year is Representative Brent Crane, Katie Ball from University of Idaho School of Law, and Jeff Kohler, trustee from the Meridian Library District.

I wanted to start with you and ask for those who are completely unfamiliar with this portion of civil law.

How does it differ from criminal penalties?

>>So when a state legislature wants to curtail or direct particular activities, they can of course, do so with a criminal statute that prohibits it and provides punishment.

There's also the civil enforcement mechanism that allows them to authorize private parties to try and basically enforce these types of laws.

Most of them provide for statutory damages.

So there's a particular set amount.

Some of them allow extra damages for compensatory or other damages that someone has suffered.

But it's really a way to avoid pre enforcement review by a federal court.

So if I think a statute that the legislature has passed is unconstitutional and I'm within the purview of that statute, I could I could my actions would come within that statute.

I might want to go to the court and say, I would like to enjoin the state actor from enforcing the statute.

So I want to keep the status quo until the court can really tell us if it's constitutional or not.

>>And we see that regularly.

>>Yes.

>>Where people sue to stop the the enforcement of the law.

>>Yes, but that requires a state actor.

So here we have private citizens who are enforcing it and obtaining these statutory damages.

And, of course, the legislature has the power right to to legislate in areas of health, morals, safety.

So they do have powers to create these types of statutes.

And in fact, in the Planned Parenthood case, the Idaho Supreme Court said that with regard to the abortion statute, that these types of civil enforcement mechanisms were constitutional and within the legislature's power.

>>Because we do have already on the books and upheld by the Idaho Supreme Court, as you said, a law that allows the family members of a fetus to sue an abortion provider if a woman does obtain an abortion.

>>Yes.

And I believe the statutory damages in that case are about $20,000.

It's just to provide an example, in Florida, they wanted to prevent harmful materials deemed harmful to minors.

They want to preclude those from being included in school libraries.

They went with the criminal enforcement route as part of that.

So it's a 2 to 5 year felony if you're providing those materials in schools.

Using the same language in that in the proposed Idaho statute, the harmful to minors materials it came through with a civil mechanism.

>>And that was something that similar to what passed the House in the 2022 legislative session.

Senate didn't give it a hearing.

It seems like this civil enforcement mechanism is more palatable, at least to some people.

>>Yeah.

House Bill 666, I think is what you're referring to with regards to the criminal penalties.

The issue is with regards to obscenity statutes in the state of Idaho, that if anyone hands a child obscene material, they're subject to criminal penalties except librarians.

And so those that were seeking to remedy the situation in the 2022 session said, well, that's just easy.

Let's just remove that exemption for librarians.

And that passed the House with no problem.

But when it got to the Senate, there were some concerns.

And so this year they thought, well, hey, maybe a better way to approach The problem is let's look at this civil course of action.

And I think the first House bill started out hospital 139 and the civil cost of action was $10,000.

By the time you got down to House Bill 314, it had been negotiated down to $2,500.

>>And 314 is the bill that Governor Little vetoed after it had passed both the House and the Senate.

Representative Crane, you supported the bill.

You know, as as we mentioned earlier in the show, Blaine Conzatti of the Idaho Family Policy Center had said during a February Capitol Clarity event that one of the thoughts behind this legislation, behind this enforcement mechanism specifically was to effect insurance policies, in essence, you know, forcing libraries to take some books off the shelves or move them if they didn't want an insurance provider to drop them as a customer.

Did that enter into the your consideration of the bill?

>>Absolutely not.

And again, I'm the chairman of the committee that it came through.

It was my brother's bill.

But I did support the legislation and will continue to do so because it's my belief that these issues need to be decided in the legislature and parents need to have the ability to go to the library and not be concerned that their child is going to be handed this type of or checking out this type of material without their permission.

And so from my perspective, all we want to do and if you look at the legislation it said, hey, we want the libraries to just take a reasonable attempt to make sure that that this material can still remain in the libraries.

We're not banning it at all.

There was no intent to remove these books from the library, but just to make sure that it's in a section of the library that has access for adults and adults would make sure that they're getting that that the parent or the guardian is getting that material to their child if that's what they choose to do.

There was no discussion until we actually, I think, got to Governor Little's office and talked about it about the ICRMP issue or the insurance issue.

>>And that’s the state insurance provider, ICRMP.

>>Yeah, exactly.

So that never factored into the decision at all for me to support the legislation.

>>And Jeff, I wanted to get you in on the conversation as you're listening to this.

This is, of course, not the first time you've heard these concerns.

What is the role of librarians in making sure that children aren't accessing materials that are age inappropriate?

>>Librarians are trained professionals.

They've been doing this for generations.

They have the tools and the ability to help every reader, regardless of their age, find the materials that are right for them and their family.

One of the challenges of this legislation is it upends that relationship and suddenly every librarian has to weigh that interaction with with the public to say, is this a good faith actor coming to me in my library.

If a 17 year old comes to the library and says, can you can you show me where the Melissa Davlin novels are and the librarian and has to say, okay, it's not James Joyce, it's not D.H. Lawrence, it's not Toni Morrison.

But I'm not sure what the Davlin novels are all about.

Am I safe to give this teenager this material?

That's that's the the challenge for these people that are used to helping the public find the information they need.

>>I would never write anything inappropriate in my novels, to be clear.

Did that insurance conversation come up in in your conversations with fellow trustees in the Meridian Library District?

>>It hasn't yet, but it certainly would have had the bill passed.

That would have been a conversation between now and July when the bill would have gone into effect because we couldn't risk that liability and we would have had conversations with ICRMP with our legal staff and others to try to figure out how we're going to navigate this environment.

>>Representative Crane, Governor Little in his veto letter called it a library bounty system, essentially pointing out that a private citizen could go and try to get $2,500.

You know, if they if their children successfully checked out a book with materials deemed obscene.

I wanted to get your reaction to that.

>>Well, the governor obviously has his opinion on this issue, and we have it.

We've had to agree to disagree on on the issue.

And that's okay.

That's part of the legislative process.

And, you know, a lot of people have asked, well, what do you think about this?

You know, now that the bill has has not been successful, typically these type of issues take three years to work their way through the legislative process.

This is only year two.

It got through the House, got through the Senate, and now the governor finally had the opportunity to weigh in.

And it will be important over the summer to work with the governor and find out what are what are some of your concerns, how can we address those concerns?

But yet also, 74% of Idahoans have said they want this issue resolved.

And so, Governor, how can we do that?

Working with the House, the Senate, the governor, librarians, to make sure that we can get this type of policy passed so that parents can ensure that they can go to the library and their kids are not going to you know, they're going to be in the eight year old section and have access to some of this obscene material that was shown in the at least in the House State Affairs Committee.

>>Katie, whether you think of it as a library bounty system or civil enforcement mechanism, you know, had had this passed or looking at other statutes that have similar enforcement mechanisms, is this something that a private citizen can navigate without an attorney?

>>The court system is always difficult to navigate without an attorney, you have filing costs.

And then there's, of course, the rules of procedure and the customary rules.

We have a lot of people represent themselves pro se in court on a variety of matters.

You're always a little bit better off, I think, with an attorney, just because they can have access to the cases, the statutes, and they know how the court system works, so.

>>But that, of course, adds to the cost understanding that you might not win.

>>Yes.

Yes.

But I think there will be people who will who will test it and file lawsuits on it.

And then it's, you know, then the courts involved in deciding what’s obscene.

What is considered harmful to minors.

And I know we have definitions in the statute, but really then we're going from librarians trying to make that decision to the courts.

And the judges trying to figure out, is this obscene or not?

And of course, in the famous case, you know, back from the 1960s when they were talking about pornography, the judge, the justice in that case said, well, I'll know what when I see it.

So it's really who's going to make these decisions.

>>But those standards could be different depending on what community you're in.

A book like Heather Has Two Mommies might be considered offensive in a smaller community that would be perfectly acceptable in a place like Ketchum or Boise.

Does that concern you?

That's subjectivity.

>>No.

And I think that that was the beauty of the legislation.

Is to allow the local communities to decide what those communities standards are.

And that's one of the reasons that I thought that was a good provision that was put into it, because as you exactly highlighted, as a lawmaker, you represent your little town, your section in Idaho.

But those values vary from from town to town.

And so allowing those community to determine what the community standards are, I think is very important.

>>Melissa, can I weigh in there?

>>Please.

>>So but what if I moved to Rexburg or I move to Couer d’Alene?

Do I have to check in with somebody at the city gates to say, Hey, we've got to make sure that the community standards haven't been modified somehow?

>>Yeah.

So again, if that's what they want to have in Rexburg and that's different from Hailey, then then we're going to allow Rexburg to determine what their commuinty standard >>But what if I moved to Rexburg?

>>Well, then you're going to have to just like if you move from Oregon to Idaho, you're going to have to adopt to the laws or the community standards of Idaho if you're coming from Oregon, and it would be the same thing within within the state of Idaho.

>>Jeff, I wanted to ask you, we have about 90 seconds left.

You had testified when this was on the Senate side that if this and other bills had passed and stood, that you would recommend to your fellow trustees that the Meridian Library District rescind all cards to minors and also not allow anyone younger than 18 into the library without an adult.

Understanding that this bill is vetoed but the debate isn't over.

Is that still on the table?

>>Not at this time.

We'd have to wait to see what comes out next year.

But certainly if a similar bill were to pass, that would be certainly something we would discuss.

>>In just under a minute.

When you hear things like that from trustees, does that concern you?

>>Well, again, the libraries were at the negotiating table when we crafted 314 and we conceded to four points.

One of those around the issue of attorneys fees, making sure that there were no attorneys fees.

The only area where we could not agree with the library was a penalty provision.

I told them, I said, well, if someone violates a law, there has to be a penalty.

If you sell cigarettes' to an underage kid or you sell alcohol to an underage kid.

There's going to be a penalty for that.

And so there will have to be some penalty for if there's a breaking of the law.

We're going to get this issue resolved.

So I want to let parents know we we're working hard.

We will get this issue resolved.

And I remain optimistic it'll happen in the next year or two.

>>We're going to have to leave it there.

Representative Crane, Jeff Kohler, Meridian Library District, and Katie Ball, University of Idaho, thank you so much for joining us and thank you for watching.

We'll see you next week.

Presentation of Idaho Reports on Idaho Public Television is made possible through the generous support of the Laura Moore Cunningham Foundation, committed to fulfilling the Moore and Bettis family legacy of building the great state of Idaho.

By the Friends of Idaho Public Television and by the Corporation for Public Broadcasting.