The dome of the Montana State Capitol on Friday, Jan. 27, 2023. Credit: Samuel Wilson / Bozeman Daily Chronicle

The Montana Senate approved a bill Tuesday that seeks to revise state laws governing the dissemination of sexually explicit or obscene material to minors, passing the proposal back to the House for further consideration.

House Bill 234, more commonly known as the 2023 Legislature’s “obscenity bill,” has become a flashpoint in the broader debate over public education. Supporters argued that the bill was necessary to protect students from exposure to material they view as inappropriate for people under 18 years old. They often cited the presence of specific LGBTQ-themed books in school libraries to make their case — books that have been used to bolster similar policy efforts in other states. 

On the other side, opponents voiced concerns that HB 234, as originally introduced by Rep. Bob Phalen, R-Lindsay, would force schools, museums and public libraries to consider culling their collections of anything that might fit the state’s definition of obscene. They also stressed that the bill threatens to expose librarians and educators to the same criminal penalties applied to commercial establishments and newsstands that fail to prevent minors from viewing any pornographic material they sell. HB 234 was amended in the House to remove public libraries and museums but retained its references to public schools.

Prior to the vote on the Senate floor this week, HB 234 sparked another pitched debate in the Senate Education and Cultural Resources Committee. Proponents again invoked pages and passages from specific books, including an excerpt from Indigenous author Sherman Alexie’s novel “The Absolutely True Diary of a Part-Time Indian” referencing masturbation, in an attempt to convince lawmakers of the bill’s necessity. One supporter even suggested the need for “some book burning” — a comment that Sam Forstag, representing the Montana Library Foundation, condemned in his testimony opposing HB 234.

“We’re better than that in Montana,” Forstag said. “I think we’re still better than that in Montana.”

The committee’s chair, Sen. Dan Salomon, R-Ronan, responded to that discussion by proposing an amendment to HB 234 last week. Salomon told the committee on April 12 that his change sought to clarify that Montana law barring the intentional dissemination of obscenity to minors already applies to everyone. 

Research analyst Pad McCracken with the Legislative Services Division elaborated on the point for lawmakers. He explained that the display or dissemination of obscene materials by a commercial establishment is a distinct criminal offense, one that the Legislature created an explicit exemption from for schools, libraries and museums in 1989. The intent, McCracken continued, was to address concerns expressed by libraries at the time that they could potentially fit the definition of a newsstand. 

The original draft of HB 234 sought to strike that exemption, applying to school employees a criminal offense originally designed to govern businesses that sell pornographic material for profit. McCracken told lawmakers that, based on public testimony, there appeared to be a widespread misunderstanding that the exemption also applied to the general criminal offense of obscenity contained elsewhere in Montana statute.

“One of the goals of this amendment was to make clear that that is absolutely not true,” McCracken said. “There are no exemptions from the obscenity law, period. And it’s not dependent on local governments taking it and making it more restrictive. It holds.”

Salomon also addressed a common complaint among HB 234’s supporters that their attempts to follow local procedures for removing books they find questionable from schools have been rejected. In Salomon’s opinion, that is an issue for local communities to sort out.

“We can’t legislate that,” he told committee members last week. “They have an issue with their local control, they need to get other people in there or have that conversation at that local level. That’s not for us to decide.” 

Salomon’s amendment, which also allows cities, counties and local school boards to adopt obscenity policies that are more restrictive than state law, passed the committee on a unanimous voice vote. However, even the new changes weren’t enough to elicit support from some of HB 234’s more ardent critics.

“There was no reason to amend this bill when it should have just died,” Montana Federation of Public Employees President Amanda Curtis told Montana Free Press Wednesday. “It was nothing other than an attempt to use national rhetoric to disrespect teachers and drive a wedge between them and parents. We hope in the final days of this Legislature, legislators choose to start respecting teachers.” 

The committee approved the amended version of HB 234 on a party-line vote, and during its final action on the Senate floor, Sen. Edie McClafferty, D-Butte, voted in favor alongside the chamber’s full Republican caucus. The House will now have to vote whether to accept the amendment.

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Alex Sakariassen is a 2008 graduate of the University of Montana's School of Journalism, where he worked for four years at the Montana Kaimin student newspaper and cut his journalistic teeth as a paid news intern for the Choteau Acantha for two summers. After obtaining his bachelor's degree in journalism and history, Sakariassen spent nearly 10 years covering environmental issues and state and federal politics for the alternative newsweekly Missoula Independent. He transitioned into freelance journalism following the Indy's abrupt shuttering in September 2018, writing in-depth features, breaking...