An amendment to an education omnibus bill aimed at keeping “obscene” and “harmful” materials out of school and public libraries drew vociferous opposition from library employees during the bill’s Wednesday hearing before the Indiana House Committee on Education.

Roughly three hours of testimony were dominated by a bevy of library employees excoriating the amendment, which they said represented an attempt at censorship and the criminalization of their profession.

Proposed by Representative Becky Cash, R-Zionsville, the amendment to Senate Bill 380 would require that school corporations and public library boards implement procedures allowing parents to petition for the removal of books and other library materials deemed “obscene” or “harmful to minors.”

A governing body that receives such a petition would be required to review it at its next public meeting.

The amendment effectively revived the seemingly stalled Senate Bill 12, which was passed by the Senate and referred to the house committee on education but was not scheduled for a hearing. Cash’s amendment is weaker than that bill in some respects but stronger in others.

As originally authored by Senator Jim Tomes, R-Wadesville, Senate Bill 12 outlined a procedure through which parents could protest school library materials, rather than allowing school corporations to make their own rules. Though it originally targeted both school and public libraries, the bill’s language dealing with public libraries was removed, making Cash’s amendment more far-reaching.

Cash and her Republican peers said that the existing law is clear enough to ensure that only truly inappropriate materials are removed. The bill’s critics, however, were unconvinced.

“I’m sorry, but I don’t think we all can agree and what is obscene in a particular case,” said Rep. Edward DeLaney, D-Indianapolis, citing the struggle to rigorously define “obscenity” in American courts. In the 1964 Supreme Court case Jacobellis v. Ohio, Justice Potter Stewart famously wrote that the Constitution protected all obscenity except “hard-core pornography,” a term he declined to define beyond noting that “I know it when I see it.”

Indiana law identifies three criteria for identifying “obscene matter or performance” — first, that “the average person, applying contemporary community standards, finds that the dominant theme of the matter or performance, taken as a whole, appeals to the prurient interest in sex,” second, that “the matter or performance depicts or describes, in a patently offensive way, sexual conduct,” and finally, that “the matter or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value.” “Material harmful to minors” has a similar but somewhat broader definition in Indiana law.

Questions around what counts as “obscene” or “harmful” led several speakers to voice concerns that the legislation would become tool of bigots.

Katie Blair, Director of Advocacy and Public Policy at the American Civil Liberties Union of Indiana, said that legislation putatively targeting sexually explicit content is “all too often used to remove books from schools that are by and about communities of color, LGBTQ folks and other marginalized groups.”

Cash, for her part, rejected those characterizations.

“I just want to be very clear that I would never support legislation that removed material that affected marginalized communities, underrepresented communities, that is not the intention,” she said.

Other critics questioned the need for a state-level mandate when most if not all school and public libraries already have procedures in place for securing the removal of obscene or harmful books.

Julie Wendorf, director of the Crown Point Community Library, said that her institution has already dealt with the problems Cash’s amendment purports to solve.

“I fully support local controls and processes for library material reconsideration. Our library’s process is handled transparently and mirrors the process in the proposed amendment and is one I can fully support as a library director,” she said. “I’m concerned how the term ‘harmful’ could be interpreted by supporters of this amendment.”

Cash said that some parents have had difficulty navigating existing rules. Her amendment, which would impose the requirement that schools publish their policies on harmful materials online, would mean additional clarity for parents, she said.

“We are creating a transparent process between the community and the school and the library,” she said. “That is the purpose of this legislation.”

Cash’s amendment would also remove an existing criminal defense available to Hoosiers charged with disseminating matter harmful to minors.

Under the state’s current laws, defendants who can prove that the material was shared for purposes of education, or that it was shared by an employee of an educational institution “acting within the scope of the employee’s employment,” can avoid a guilty verdict.

The amendment would strip away the “educational purposes” defense and remove schools and public libraries from the list of protected institutions.

Zach Stock, an attorney with the Indiana Public Defender Council, condemned the proposed changes, stressing that affirmative defenses are not “loopholes” because defendants bear the burden of proving the circumstances that would shield them from conviction.

“We’re regulating expression here, and when you’re regulating expression, it’s important to have a safety valve for the protection of legitimate expression, even expression that we vehemently disagree with,” he said. “It doesn’t mean we have to tolerate harmful material, but we can’t all agree on what is harmful. None of us in this room are going to agree to that. There’s no bright lines. We live in a world of uncertainty and affirmative defense has allow us to operate in that world with a little less anxiety and fear.”

Wendorf said that she has effectively dealt with “a number of” requests for library materials to be reconsidered, but fears that the change could mean criminalizing librarians.

“Removing the legal defense for libraries will lead to unintended consequences,” she said. “The proposed amendment places librarians in a dangerous position where they could face criminal prosecution for doing their job — an absolutely appalling and inappropriate consequence for a disagreement over books.”