Trash or Treasure? An Unbiased Look at the “Freedom to Read Act”
By Jon Kurpis
In 2023, I wrote two well-received articles pertaining to School Librarians and the False Book Banning Narrative* and Bill S3893 that attempted to legislate obscene content permanently in NJ school systems.** This piece can be considered an organic 3rd installment in that series as it unpacks the “Freedom to Read Act” (S2421) which was introduced in the NJ Senate on January 29th, 2024.***
In my previous articles on this subject, I made it abundantly clear that I’m a free speech absolutist and that I generally do NOT support censorship in public libraries. So long as questionable content is properly stored away from minors, very little if anything should be off limits for adults. Additionally, I also made it known that despite my unequivocal support for Constitutionally guaranteed freedoms for adults, I hold school libraries (created to serve minors and children) to a different, more cautious standard.
From the perspective of both a protector of children and an equally fervent defender of free speech, this article chronicles the newly introduced Freedom to Read Act (S2421). This is done methodically and objectively so that readers may truly understand this potential legislation. It is my belief that the best possible outcomes will hopefully be achieved by approaching it in this manner.
SYNOPSIS
“"Freedom to Read Act"; establishes requirements for library material in public school libraries and public libraries; protects school library media specialists and librarians from harassment.”
Despite it’s brief official synopsis found above, the Freedom to Read Act (S2421) is a massive, complicated 26 page piece of legislation that is somewhat difficult to understand. In an effort to keep things simple, below is a summation of what this bill seeks to achieve.
Acknowledge that reading is a fundamental right and that public and school libraries are essential in facilitating this right.
Acknowledge that all people (including students) are entitled to seek out diverse points of view and public/school libraries can't limit content on the basis of who the author is or what the subject matter might be.
Acknowledge that Librarians and School Library Media Specialists are trained to curate and facilitate this process.
Acknowledge that Librarians and School Library Media Specialists are subject to harassment.
Memorialize that Librarians and School Library Media Specialists may sue parents and members of the community for emotional distress and other such things if they feel they’ve been harassed.
Grant Librarians and School Library Media Specialists civil immunity if they do their job correctly.
Grant Librarians and School Library Media Specialists criminal immunity and an affirmative defense for an obscenity prosecution.
Require that School Boards and Public Libraries adopt a formal policy requiring that diverse materials must be in their collection.
Require that School Boards and Public Libraries create a formal policy and procedure for the potential removal of inappropriate books/materials from their collections.
At first glance, the Freedom to Read Act does not stand out as controversial. Americans believe that people have a right to read and understand that Libraries facilitate that right. Moreover, discrimination on the basis of who wrote a book or the content itself is repugnant and has no place in public or school libraries. Additionally, no teacher should face undeserved harassment for simply doing his or her job. And as far as Board of Education policies are concerned, there should be a mandated policy to ensure diverse points of view are included in collections as well as a protocol and procedure in place for removing obscene materials in the rare instances that it occurs. Although none of this seems particularly unreasonable, the devil is always in the details and this is certainly the case with the Freedom to Read Act (S2421).
The first thing I found peculiar in regards to the Freedom to Read Act was the author’s insistence on recognizing the universal training and skills of Librarians and School Library Media Specialists.
f. School library media specialists and librarians are essential members of the community; as trained professionals, they help young people of all backgrounds find and interpret the information they need to succeed in school and prepare for college, careers, and life.
g. School library media specialists and librarians receive extensive professional training that prepares them to develop and curate collections…
To be clear, I’m in no way taking the position that Librarians and School Library Media Specialists lack education and/or qualifications. What I am however saying is that just as people assume history teachers are taught how to teach history, biology teachers are trained to teach biology, and English teachers are trained to teach English, it is also assumed that Librarians and School Library Media Specialists are also similarly trained for their particular job.
And because of this, one may reasonably wonder why S2421 only acknowledges Librarians and School Library Media Specialists and leaves out every other teaching discipline.
All teachers are trained to teach in their area of expertise and one shouldn’t be given legislative priority over the others especially when all of them could theoretically be harassed about the makeup of their class materials.
Moreover, all Librarians have not received the exact same education and training. For instance, a Librarian who graduated in the 1980s did not learn the same things as a Librarian who graduated in 2015. And the Librarian who graduated in 2015 will not have had major units on AI technology that will no doubt be part of the core curriculum that a future Librarian who graduates in a couple of years will receive. And although incredibly important, no amount of continuing education or professional development will totally bridge these gaps. Being that individual skillsets may theoretically vary from Librarian to Librarian, it seems a tad bit disingenuous to memorialize their training as universal.
Last but not least, there is no essential reason that would require this to be acknowledged at this time especially being that it’s already assumed that they have proper training. It may in fact be appropriate to acknowledge their training (along with other teaching disciplines) in the future, but it doesn’t make or break the current legislation. What it does however do is convolute a complicated bill while concurrently offending the other well trained teaching disciplines who are not being recognized.
The 2nd issue that jumps out as problematic is that the legislation seeks to grant criminal and civil immunity to Librarians and School Library Media Specialists. This is a red flag!
First and foremost, why would it ever be a good idea to give any teacher blanket immunity from criminal matters? If a teacher commits a crime against a child, he or she must be held accountable. As a matter of policy, we shouldn’t be looking to give anyone in any profession a get out of jail free card when it comes to potential crimes committed against minors.
Secondly, civil immunity isn’t really necessary as teachers are well protected as is. Think about it. How many public school teachers do you know who have been successfully sued? My guess is not many if any at all. This is because as long as teachers don’t act way outside their official duties, they incur little to no liability.
The 3rd issue with S2421 is that it formally memorializes that Librarians and School Library Media Specialists can sue parents and members of the community for emotional distress and other such things if they feel they’ve been harassed. This is not needed as there is no law preventing a teacher from filing a civil suit.
Besides being unnecessary, this part of the bill pits Librarians and School Library Media Specialists against parents and the community when it is unhelpful to do so. There is no reason to pour gasoline on a fire when there is nothing currently stopping a teacher from suing someone.
One aspect of the Freedom to Read Act that is terrific is its inclusion of NJ Obscenity Laws starting on Page 9 of the bill. Below is an exact copy of what can be found in the legislation.
2C:34-3. Obscenity For Persons Under 18.
a. Definitions for purposes of this section:
(1) "Obscene material" means any description, narrative account, display, depiction of a specified anatomical area or specified sexual activity contained in, or consisting of, a picture or other representation, publication, sound recording, live performance or film, which by means of posing, composition, format or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the area or activity.
(2) "Obscene film" means any motion picture film or preview or trailer to a film, not including newsreels portraying actual current events or pictorial news of the day, in which a scene, taken by itself:
(a) Depicts a specified anatomical area or specified sexual activity, or the simulation of a specified sexual activity, or verbalization concerning a specified sexual activity; and
(b) Emits sensuality sufficient, in terms of the duration and impact of the depiction, to appeal to prurient interest.
(3) "Specified anatomical area" means:
(a) Less than completely and opaquely covered human genitals, pubic region, buttock or female breasts below a point immediately above the top of the areola; or
(b) Human male genitals in a discernibly turgid state, even if covered.
(4) "Specified sexual activity" means:
(a) Human genitals in a state of sexual stimulation or arousal; or
(b) Any act of human masturbation, sexual intercourse or deviate sexual intercourse; or
(c) Fondling or other erotic touching of covered or uncovered human genitals, pubic region, buttock or female breast.
(5) "Knowingly" means:
(a) Having knowledge of the character and content of the material or film described herein; or
(b) Having failed to exercise reasonable inspection which would disclose its character and content.
(6) "Exhibit" means the sale of admission to view obscene material.
(7) "Show" means cause or allow to be seen.
b. Promoting obscene material.
(1) A person who knowingly sells, distributes, rents or exhibits to a person under 18 years of age obscene material is guilty of a crime of the third degree.
(2) A person who knowingly shows obscene material to a person under 18 years of age with the knowledge or purpose to arouse, gratify or stimulate himself or another is guilty of a crime of the third degree if the person showing the obscene material is at least four years older than the person under 18 years of age viewing the material.
c. Admitting to exhibition of obscene film.
(1) Any person who knowingly admits a person under 18 years of age to a theatre then exhibiting an obscene film is guilty of a crime of the third degree.
(2) A person who knowingly shows an obscene film to a person under 18 years of age with the knowledge or purpose to arouse, gratify or stimulate himself or another is guilty of a crime of the third degree if the person showing the obscene film is at least four years older than the person under 18 years of age viewing the film.
d. Presumption of knowledge and age.
The requisite knowledge with regard to the character and content of the film or material and of the age of the person is presumed in the case of an actor who sells, distributes, rents, exhibits or shows obscene material to a person under 18 years of age or admits to a film obscene for a person under 18 years of age a person who is under 18 years of age.
e. Defenses.
(1) It is an affirmative defense to a prosecution under subsections b. and c. which the defendant must prove by a preponderance of evidence that:
(a) The person under age 18 falsely represented in or by writing that he was age 18 or over;
(b) The person's appearance was such that an individual of ordinary prudence would believe him to be age 18 or over; and
(c) The sale, distribution, rental, showing or exhibition to or admission of the person was made in good faith relying upon such written representation and appearance and in the reasonable belief that he was actually age 18 or over.
By including New Jersey’s extensive and specific obscenity laws within the legislation, the author is acknowledging that these laws are on the books and that they are immensely relevant to the issue. And if you take the time to read them, it’s obvious why they had to be included in S2421.
This legislation was designed in part to protect Librarians and School Library Media Specialists from harassment. Additionally, it is an irrefutable fact that the vast majority of books contested by parents that involve Librarians and School Library Media Specialists include imagery that is classified as obscene under NJ law.
The best example of this is the highly controversial book Gender Queer.
Librarians and School Library Media Specialists are primarily targeted for including images like the ones featured above in public school collections.
Considering that the NJ Obscenity Laws (included in the bill) clearly regard images like these as obscene and being that these obscene images cause the overwhelming majority of contentious relations between members of the community and Librarians and School Library Media Specialists, this bill should be seeking to root out this core obscenity problem and it doesn’t.
The failure of this legislation to root out their acknowledged obscenity issue is most apparent when considering the policies the bill requires from Board of Educations and Public Libraries.
S2421 requires that both public and school libraries must create a policy that ensures that diverse points of view are included in their collections, but in no place does it memorialize that obscene imagery and materials, as defined by NJ law, are to be prohibited in school libraries.
Furthermore, both public and school libraries are mandated to have a policy and protocol for removing materials from their collections. However, the way the legislation is written DOES NOT ensure illegal, obscene imagery will be removed from school libraries in every instance.
Let’s say a public school library has a copy of Gender Queer in its collection and a parent files a formal request to remove it as would be permitted by this legislation. And let’s also say the committee formed to review the request for its removal agrees that it’s obscene and formally advises the Board of Education to vote to remove it. The Board of Education can still vote to keep the illegal, obscene material in its collection.
If this were to happen under the Freedom to Read Act as it currently written, parents would have little recourse. They couldn’t sue the Librarians and School Library Media Specialists for showing this illegal material to their children and criminal charges could not be filed either. And if a parent were to confront it the wrong way, the School Librarian or School Library Media Specialist could sue them for emotional distress. This scenario is literally possible and is completely unacceptable.
Despite all the problems found in the Freedom to Read Act (S2421), the legislation also offers our elected officials an incredible opportunity to solve the obscenity issue that is currently a problem in NJ schools.
In order to do this, the following things MUST happen:
S2421 must require School Boards to formally acknowledge the NJ Obscenity Laws included in the legislation and include an official no tolerance policy in terms of including or keeping obscene materials in school library collections.
S2421 must require School Boards to remove any obscene materials from its library collection if any exist.
S2421 must require School Boards to institute a policy to audit their current collections to ensure no obscene materials or imagery exists.
S2421 must require School Boards to institute a policy for an annual audit of their collections to ensure no obscene materials have been added to their collections.
S2421 must remove the blanket criminal immunity clause and affirmative defense language from the legislation.
S2421 must remove the language granting the right to sue parents for harassment.
If the above measures are implemented, everything else may stay as is.
To be clear:
I do not think it is necessary or even wise to acknowledge the skills of Librarians and School Library Media Specialists, but it’s worth conceding this if the above changes are made.
I do not think there is a need to grant civil immunity to Librarians and School Library Media Specialists in the bill as they already have significant protections. That said, it’s well worth allowing it to be included in order to keep obscene materials out of school libraries.
Everything about the right to read and ensuring diverse collections can stay as well.
Remember that diversity of thought cuts both ways. If schools want to include books about the Covid vaccine, now they will have to also include materials about its dangers and the potential benefits of Ivermectin. And if schools want to include information about a January 6th Insurrection, they now must also include information about how the 2020 Election may have been stolen. Memorializing diversity of thought in school library collections is a good thing and more of a benefit than most people realize.
There is an old adage that says “If a deal is truly fair, both sides walk away feeling a little bit like they got punched in the stomach.” In many ways, this describes my proposals to make the Freedom to Read Act (S2421) viable.
Although not ideal, S2421 presents legislators with a chance to permanently keep our children’s school libraries free from perverted, obscene materials and imagery. Capitalizing on this would be a colossal achievement for parents and elected officials alike. We must therefore do everything possible to ensure this happens even if it means agreeing to a few irrelevant concessions.
We also must keep in mind that NJ Democrats have the numerical advantage in the Senate and Assembly meaning the alternative could be S2421 passed in its current form which would be an unmitigated disaster.
The “Freedom to Read Act” offers New Jersey Elected Officials a Chance to Turn Trash into Treasure.
Hopefully our leaders will read this, take it seriously and do what is required to keep our public school libraries free from obscene materials once and for all.
Contact Jon Kurpis
✉️ Email | jonkurpis@protonmail.com
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* https://kurpis.substack.com/p/school-librarians-and-the-false-book
**https://kurpis.substack.com/p/s3893-legislating-permanent-pornography
***https://www.njleg.state.nj.us/bill-search/2024/S2421/bill-text?f=S2500&n=2421_I1