Blair Miller

Backers of an obscenity bill that seeks to criminalize school staff told a Senate committee Friday afternoon the committee chair was censoring speech when a proponent tried to read passages from a book aloud, while another told lawmakers: “It looks like there needs to be some book burning.”

“In the proponent testimony today, I heard words like ‘afraid,’ ‘mistrust,’ references to books like Sherman Alexie’s, and things like book burning,” said lobbyist Sam Forstag, testifying in opposition to House Bill 234 on behalf of the Montana Library Association. “We’re better than that, Montana. I think we’re still better than that in Montana. I hope that’s something that is as disturbing to you, as committee members, as it is to me.”

Senate Education and Cultural Resources Committee Chairperson Sen. Dan Salomon, R-Ronan, tamped down testimony from Heather Higgs, whose efforts to get a book removed from Gallatin High School curriculum were denied by the Bozeman school board earlier this year, as she attempted to read sexual excerpts from Alexie’s “The Absolutely True Diary of a Part-Time Indian,” a 2007 National Book Award for Young People’s Literature, into the public record.

“Hang on, you’re not doing that in here,” Salomon said. “… We’re having a hearing and we’re having good decorum in the Senate.”

“That’s exactly why we need this bill, sir,” Higgs said.

Higgs was one of two dozen proponents of Rep. Bob Phalen’s bill that seeks to implement criminal penalties against school librarians and teachers who provide students with material deemed to be “obscene” – a group that also included House Speaker Matt Regier, R-Kalispell; Rep. Lee Deming, R-Laurel; Office of Public Instruction Director of Family Engagement Jenna McKinney; Ennis School Board Chair Kyle Stone; and Montana Family Foundation President Jeff Laszloffy.

“Even though my school district does not have obscene materials … at least none that I’m aware of anyway, other districts in the state may. Other districts’ decisions have negative impacts on all of us as the discussion spreads through social media and other media outlets,” Stone said. “Not intervening at the legislative level will continue to increase division in our communities and amplify mistrust in our public school system statewide.”

Much of the discussion on both sides of Phalen’s controversial bill centered around what can be defined as obscene and how people’s differing perspectives could result in vastly different outcomes should his bill be signed into law.

Proponents of the bill decried decisions by several locally elected Montana school boards not to ban books they objected to, while opponents told the committee their counterparts were furthering national political messaging that disregarded Montana teachers, librarians and school boards and their efforts to give students good, well-rounded educations and make those decisions at a local level.

“Montana’s kids are seeing these insinuations that their teachers are indoctrinating them, lying to them, hurting them. And that’s undermining their relationships with their schools,” said Sarah Piper, the director of public policy and research with the Montana Federation of Public Employees. “Please don’t drive a further wedge between parents, kids and their teachers by waging a national culture war here in Montana.”

Phalen’s bill narrowly passed the House in early February in a 53-45 vote and awaited its first Senate committee hearing for nearly two months. In mid-March, the Senate denied a motion from Senate Majority Leader Steve Fitzpatrick, R-Great Falls, to have the bill sent to the Senate Judiciary Committee, made up of more hardline Republicans, on an 18-32 vote.

The Lindsay Republican’s bill would subject school teachers and librarians to fines up to $500 and six months of jail time if they were convicted of providing obscene material to children. It was previously amended to remove those liabilities for museum and public library employees.

Rep. Ed Stafman, D-Bozeman, a former attorney, told the committee about two people he represented who were charged with violating Montana’s obscenity law only to be found not guilty or have the charges dropped. He said each charge not only severely damaged each person’s reputation despite them both being cleared, both also incurred large costs in attorneys’ and court fees.

He asked the committee if it wants to add another burden to qualified teachers and public schools in a time when Montana already faces teacher shortages.

“You can bet there’ll be complaints about particular books, films, etc. We heard them today. We’ve heard them in the news and other states,” Stafman said. “It doesn’t take much. All that’s needed is a complainant to persuade one of our 56 county attorneys to bring the case, and that teacher’s life, or a librarian’s life and reputation, will be destroyed regardless of the outcome.”

Stafman answered questions from lawmakers for about 20 minutes, and explained how the “Miller test,” used to find where materials cross the line into obscenity, is complex because of people’s different opinions and standards as to what is offensive. The Miller test contains three prongs:

  • Whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest;
  • Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
  • Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Obscenity is also defined in Montana code; the portion of statute takes a similar stance as the Miller test.

Stafman explained that when people only use excerpts of material, taken out of context, it can have a “dangerous” and “chilling” effect. In the case of teachers and librarians being pressured, he said, they might remove legitimate material to not get close to the line of obscenity.

“That’s one of the most dangerous parts of this, is that we deprive our kids of good material just because we’re scared and because the consequences are so severe,” Stafman said.

Sen. Daniel Emrich, R-Great Falls, queried Stafman as to what parents should do if a school board “ignored” their pleas to ban certain materials even if they had gone through the proper review process and were not removed.

“Remember, we live in a democracy,” Stafman said, noting that all 33 bills he brought forth this session had been tabled. “We would hope school boards will listen to them or they’ll vote them out. But that’s how it is. In public schools, you don’t always get your way. You have the right to be heard, like I’m heard here. You don’t have the right to have your way.”

Some opponents of Phalen’s bill said if the legislature felt it needed to address the topic of books in schools, it should back House Bill 913 from Rep. Bob Barker, R-Roberts, which puts an exact process in place for school boards to consider and reconsider materials in school libraries. The bill passed the House in a 68-30 bipartisan vote earlier this month – with the no votes coming from the right wing of the Republican party.

“The intent of Rep. Barker’s bill was to ‘turn down the heat’ on this topic, which is being fueled by national debate, yet very rarely has been an issue in the schools in our state,” said Jana Hess-Herbert, who noted her daughter is a librarian in Kalispell.

Six school children also testified against the bill Friday afternoon, saying they felt it would restrict their learning opportunities, especially for any of their classmates trying to learn more about LGBTQ+ topics and experiences.

Kellen Alger, a public school teacher in Helena, offered lawmakers to come to his classroom – “200 yards down the street on Broadway” – and see that he was not there indoctrinating or pushing his values on anyone. He said as a teacher, his job is to create and build relationships, and as a parent, he doesn’t want others creating blanket rules and regulations for his own children.

“I’m a parent. I can make those decisions,” he said.

More than 30 people testified against Phalen’s bill, including teachers, librarians and parents from across the state who said the bill sought to take away parental control, control from local principals, superintendents and school boards, and to further the teacher shortage by driving educators away from Montana.

Phalen had handed out images from the book “Gender Queer” as exhibits during the hearing, and in his closing, asked the panel if the images were ones they wanted their children and grandchildren to get their hands on. He then handed out another picture of children playing  together in what appeared to be the 1950s or ‘60s.

“All my opponents can think about is the penalty, which is only a misdemeanor. It seems that the children here are just playing second fiddle. So, let’s be adults and the good examples for them to follow,” he said. “Just remember that this picture here – because this is where we used to be. This was our kids, and this is where I grew up. And this kind of a lifestyle – we were never bombarded with sexualizing materials.”

The committee did not take executive action on Phalen’s bill Friday evening and is next scheduled to meet on Wednesday. An opponent of the bill said they believed the committee could take action later this week.