BOISE, ID – Amid two lawsuits challenging Idaho’s 2024 law restricting access to library materials deemed harmful for minors, a House committee advanced two bills amending definitions in the law.

Together they would remove some vague language in the existing law and create different standards for private and public school libraries books.

Nampa Republican Rep. Jaron Crane said the bills were recommended by the Idaho Attorney General’s Office in response to a 9th Circuit Court of Appeals ruling on a challenge to the 2024 law created through House Bill 710, as well as rulings regarding a Texas law.

The 2024 library law has been challenged by a coalition of national book publishers, authors, the Donnelly Public Library and Idaho parents and students; and by a group of private schools and libraries.

The House State Affairs Committee on Thursday voted to send House Bills 795 and 819 to the House floor for debate and consideration. Members of the public testified overwhelmingly against HB 819 with arguments that largely mirrored those against the original harmful materials in libraries bill two years prior.

One person, Michael Hon, testified in favor. He said that taxpayers pay librarian salaries and he “would guarantee that a large percentage of taxpayers would not approve of this type of material in the libraries.”

Seven people testified against the bill, arguing that it censored protected speech in public schools and public libraries.

Idaho Falls Republican Rep. Stephanie Mickelsen and Boise Democrat Rep. Anne Henderson Haws voted against sending the bills to the House floor for consideration. The rest of the present committee members voted in favor of advancing the bill.

Mickelsen made a failed motion to hold HB 819, calling it a “huge overreach of the government.”

If passed by the House, the bills would later go to the Senate.

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.

Opponents echo concerns with original library bills 

Jenny Emery Davidson, the executive director of the community library in Ketchum, said the 2024 law the bills were amending had been “a big mess in the state.”

“It has created confusion for libraries and dissatisfaction for Idaho citizens who were not, in fact, clamoring for books to be removed from their access,” Emery Davison said. “This law also has caused unnecessary expense for Idaho taxpayers, as it has prompted multiple legal challenges because of its disregard for established First Amendment rights and its obfuscating language.”

She argued the bill to amend it wasn’t necessary and would be “another Frankenstein library bill that will cultivate confusion, invite censorship and prompt unnecessary legal battles that waste our money.”

Most of the opponents made similar arguments, and had concerns that the standards for the public schools and private schools would be different.

Before HB 710 passed, there were multiple attempts by the Idaho Legislature to regulate library books to restrict depictions of sexual conduct that’s deemed harmful to minors. The effort began in 2022 with House Bill 666 that would’ve criminalized librarians for checking out harmful materials to minors. That bill passed the House but didn’t move forward in the Senate.

Multiple other bills, which allowed parents of minors to sue libraries if their child obtained harmful materials, also failed to advance.

HB 710 requires libraries to have a form for people to challenge books that are in a section for readers below age 18. If the material is considered harmful, libraries would have to remove the book or move to a section designated for adults only. If the book isn’t moved, those adults could sue the library.

This story first appeared on Idaho Capital Sun.