North Dakota Senate overrides book ban bill veto; Burgum OKs restrictions for children's collections

BISMARCK — The North Dakota Senate has overridden Gov. Doug Burgum's veto of one of two book ban bills, sending the bill to the House of Representatives for a final vote.

Burgum on Tuesday, April 25, signed one of the book ban bills approved by the Legislature and vetoed the other, which has criminal penalties and also restrictions that Bismarck's public library estimated would cost $334 million to comply with.

The governor signed House Bill 1205 by House Majority Leader Mike Lefor, R-Dickinson. He vetoed Senate Bill 2360 by Sen. Keith Boehm, R-Mandan.

Both bills target "explicit sexual material," defined as "any material which, taken as a whole, appeals to the prurient interest of minors; is patently offensive to prevailing standards in the adult community in North Dakota as a whole with respect to what is suitable material for minors; and taken as a whole, lacks serious literary, artistic, political, or scientific value for minors."

Supporters said the bills protect children from pornography. Opponents said the bills are censorship.

The state House of Representatives needs 63 votes to override a veto; the Senate needed 32.

The Senate overrode the veto on Wednesday afternoon in a 33-14 vote, sending the bill to the House, which needs nine more votes than its previous vote on the bill.

The Legislature is nearing the end of its session, with eight days left of a maximum 80 to meet.

Under Boehm's bill, employees of school districts, state agencies and public libraries could face a misdemeanor charge for willfully exposing "explicit sexual material" to a minor. The bill also applies to "newsstands or any other business establishment frequented by minors, or where minors are or may be invited as a part of the general public."

Boehm's bill would add public libraries and public school libraries to the latter places. The State Library is exempt.

Burgum in a veto message said Boehm's bill "goes too far" with its criminal penalties, and "creates an enormous burden for our 84 local public libraries and hundreds of K-12 school libraries by imposing, through the threat of criminal prosecution, a de facto requirement that libraries conduct an expensive review of library materials that have already been through a screening process to protect young people from objectionable material."

"While some will argue that such a review isn't necessary because the bill states that a librarian must 'willfully' display explicit sexual material in order to be in violation of the law, librarians cannot reasonably be expected to take their chances with what's currently displayed on the shelves and assume the risk of criminal prosecution based on that subjective standard," Burgum said.

The governor also knocked the bill for not including an appropriation, or money "to cover the considerable expense of this review process, making this an unfunded mandate" local and school libraries are "ill-equipped to afford and manage."

Burgum said exempting the State Library and not including private K-12 schools "creates further inequities."

"America is built on a foundation of free speech, the free exchange of ideas and the freedom from government interference to read — or not to read — books that share ideas and stories across a spectrum of human nature and experience," he said.

"The best way we protect our youth is through involved and caring parents making decisions in the best interests of their children, whether at home, online or in a public or school library — not with unfunded, one-size-fits-all government mandates," Burgum said.

The bill also would have required public libraries and public school libraries to submit an annual report to lawmakers about "provider compliance with technology protection measures" for digital or online library database resources for K-12 students to prevent viewing of "explicit sexual material."

"The legislation does not ban books or censor. It merely moves it to a different part of the library," Boehm told the Senate on Wednesday. "It does not put staff in jail, unless they recklessly and willfully get obscenity to children."

He said the Senate "neutered" 1205 in not removing the exemption for public libraries from the state's obscenity laws. Boehm also blasted "no less than 10 activists at the head of our libraries" who "continue to say that we shouldn't do away with this material."

The Senate previously passed Boehm's bill 33-14. The House passed the bill 54-38. The latter was not veto-proof.

The state House of Representatives passed Lefor's bill 70-22. The Senate passed the bill 39-7.

Lefor's bill, which Burgum signed, will remove or relocate "explicit sexual material" from public libraries' children's collections.

The bill will mandate public libraries to come up with policies and procedures before next year for removing or relocating "explicit sexual material," handling requests to remove or relocate books, developing age-appropriate book collections and periodically reviewing collections.

Libraries also will have to submit a "compliance report" on their policies to lawmakers.

The bill also makes clear it will apply to "any children's book inventory maintained by a public library."

Burgum said, "Protecting children from explicit sexual material is common sense."

He also said the bill "standardizes the process for local public libraries to review material when requested by parents, library users or other members of the public — a process already in place and working at nearly all public libraries across the state."

Tim Dirks, director of Fargo Public Library, said he appreciated Burgum’s veto on SB 2360, but HB 1205 presents problems on its own, including First Amendment rights issues.

“This is where it is unfortunate. It’s bringing the library into the culture wars. Instead of saying we can’t control culture in the broader sense, they’re saying let’s impose what we feel is safe within state funded or public organizations. Thus, you get these kinds of clumsy legislation,” Dirks said.

Dirks expects that a lawsuit brought on by libraries across the state may happen in the near future.

“I would anticipate ... libraries in the state participating in a lawsuit, but I haven’t heard anything specific yet,” Dirks said. “I don’t have anything concrete, but I know there was continued concern leading up to this, and other libraries have signed on to the pro bono California law firm to assist with this."

He was unsure of the name of the law firm.

The decision to join in a lawsuit will be up to the library board, West Fargo Public Library Director Betty Adams said, declining to give further details about the possible litigation.

"If we aren't part of it, I don't want to associate with it if it's not going to come to pass," she said.

Adams' last day as director of West Fargo Public Library will be May 19, and Kirsten Henagin, the adult and patron services manager, will take her place, Adams said.

Although Adams was pleased that Burgum vetoed SB 2360, she said HB 1205 isn't much different than what they're already doing.

"It's just an update to the Century Code, and we already follow and have procedures in place. We are in a good position to follow through with it," Adams said.

Libraries have locally appointed library boards, as per the North Dakota Century Code, that oversee regulations, Dirks said, but now, he has to report back to a so-far unknown entity about how the library is cooperating with the law.

“We are not acting as the parent, and nor should we. They have their beliefs about right and wrong, but our job is to provide materials and resources that hopefully represent and are of value to the broad spectrum of our community,” Dirks said.

He added that HB 1205 is an attempt to force a limited worldview on libraries and, in turn, the community at large.

“They’re saying we know better as to what we define, ever so clumsily, what should be available and what should not be available,” Dirks said.

The legislation will also incur additional costs, currently unknown, for public libraries, and yet provides no fiscal assistance, Dirks said.

In addition to reviewing current collections of hundreds of thousands of books, he wondered if libraries may soon be required to start sequestering visitors to sections within the establishment.

“And that would be very difficult to do,” Dirks said. “Not every single age is exactly the same, and parents don’t have the same world view in regard to the culture wars.”