harmful to minors laws vis--vis librarians:

summaries of 50 states, dist. of columbia

this list has been copied word for word without change from www.communityinterest.org/alliance/porn%2050%20state%20survey.htm , except for a more descriptive title and minor formatting changes. since we do not know how accurate or how recent is this information, we may update the information--would someone please volunteer to help us?

by the way, is exposing 12 year olds to clearly inappropriate language in books "educational"? does a paragraph or two at the end of the book stating how such behavior is inappropriate make the book "educational" or "scientific"? the ala thinks so, do you?

(" what he really needs is for me to put my mouth around his dick." after a minute or two of this i become anonymous. to the guy and to myself. andrew (or whoever) is lost inside himself, waiting to be shaken by his own little volcano, and i'm thinking, who is this girl kneeling on the floor with some weird guy's bone in her mouth? "; " lara unbuttoned my pants and pulled my boxers down a little and pulled out my penis. ... and then she wrapped her hand around it and put it into her mouth ." sorry we have to subject you to this but these are ala recommended books for 12 year olds, one even an ala award winner, and the unfiltered internet is even worse. if we gave this material to children, we would be arrested--why is it okay for librarians to give this to children?)

alabama employees of public libraries potentially liable under statute

conclusion: employees of public libraries, under certain circumstances, could be prosecuted in alabama, under code of ala. SS 13a-12-200.5 (2001), regarding the distribution of obscene materials to minors. although in accordance with code of ala. SS 13a-12-200.10, an affirmative defense is available to public libraries and employees acting on behalf of the legitimate educational purposes of public libraries, arguably library employees could not invoke the defense under all circumstances. since code of ala. SS 13a-12-200.5 pertains to the non-commercial dissemination to minors of obscene print materials and internet images, public library employees could be held liable under the statute, where they are unable to invoke the defense.

analysis:
1) statute could apply to employee not acting on behalf of legitimate educational purposes of library in disseminating obscene material to minors
employees of a public library could be prosecuted for disseminating obscene material to minors under code of ala. SS 13a-12-200.5. in accordance with code of ala. SS 13a-12-200.10 the criminal provisions of this division shall not apply to bona fide public libraries, or public school or college or university libraries, or their employees or agents acting on behalf of the legitimate educational purposes of such public libraries, or public school or college or university libraries.

upon examination of the statutory language, it is evident that the language of the defense is vague. thus, in the absence of case law in this jurisdiction interpreting the defense statute, its applicability to public libraries is subject to varying fact-specific interpretations. although the defense protects a bona fide library and public library employees acting on behalf of legitimate educational purposes of library, arguably the defense would not be available to public library employees who act without legitimate educational justification in disseminating obscene material to minors. for example, where a public library employee knowingly permits a minor to access an unfiltered internet screen, in contravention to the librarys established internet use policy requiring minors to use filtered terminals, and where the minor has no educational purpose for obtaining the obscene material, in a prosecution under the statute, it is likely that the employee would be unable to establish that he was acting on behalf of the legitimate educational purposes of the library.

2) statute applies to the non-commercial dissemination of obscene materials to minors
since code of ala. SS 13a-12-200.5 pertains to the non-commercial dissemination of obscene print materials and internet images, public library employees could be held liable under the statute, where they are unable to invoke the defense. code of ala. SS 13a-12-200.5(1) states: it shall be unlawful for any person to knowingly or recklessly distribute to a minor, possess with intent to distribute to a minor, or offer or agree to distribute to a minor any material which is harmful to minors.

3) statute applies to both print materials and internet images

in alabama, a public library could be held liable for the dissemination to minors of obscene print materials and internet images. material as defined in code of ala. SS 13a-12-200.1(15) means any book, magazine, newspaper, printed or written matter, writing, description, picture, drawing, animation, photograph, motion picture, film, video tape, pictorial representation, depiction, image, electrical or electronic reproduction, broadcast, transmission, telephone communication, sound recording, article, device, equipment, matter, oral communication, live performance, or dance. clearly, the broad definition of materials can be construed to encompass internet images in addition to print materials.

alaska -- (alaska does not have a harmful to minors statute relating to the dissemination of harmful materials to minors)

conclusion: alaska does not have a statute that addresses the distribution of harmful materials to minors. however, alaska does have related statutes. code of ala. SS11.66.300 prohibits minors from being present at an adult entertainment business. code of ala. SS 11.61.123 makes it a crime for a person to knowingly view or produce a picture of the private exposure of the genitals, anus or female breast of another, under certain circumstances. code of ala. SS 11.61.125 proscribes the distribution of child pornography, and code of ala. SS 11.61.127 makes it a crime to knowingly possess child pornography. however, none of the aforementioned statutes contain provisions relating to the liability of libraries, their agents or employees for the distribution of harmful materials to minors.

arizona 1) statute applies to public libraries and their employees with regard to print materials
2) statute appears to be inapplicable to libraries and their employees with regard to harmful materials sent over the internet because the statute proscribes only transmission or sending of materials over the internet

conclusion: a public library and its employees can be prosecuted under the arizona statute, a.r.s. SS 13-3506 (2001), regarding furnishing harmful items to minors, because the statute contains neither a public library exemption, nor a defense which a public library could invoke and applies to the non-commercial furnishing of harmful materials to minors. notably, the statute applies to the furnishing of print materials only.

a.r.s. SS 13-3506.01, applies to the furnishing of harmful items to minors via the internet. that provision makes it unlawful to transmit or send over the internet an item that is harmful to minors. this provision appears to be inapplicable to public libraries because libraries provide access to the internet, rather than transmit or send materials.

analysis
1) a public library and its employees can be prosecuted under the arizona statute regarding the non-commercial furnishing to minors of print materials harmful to minors
a public library and its employees can be prosecuted under a.r.s. SS 13-3506 (2001), regarding furnishing harmful items to minors, because the statute contains neither a public library exemption, nor a defense which a public library and its employees could invoke. moreover, the statute applies to the non-commercial furnishing to minors of harmful materials. in accordance with a.r.s. SS 13-3506(a), it is unlawful for any person with knowledge of the character of the item involved to recklessly furnish, present, make available, give, lend, show, advertise, or distribute to minors any item that is harmful to minors. as further stated in a.r.s. SS 13-3506(b), this section does not apply to the transmission or sending of items over the internet.

2) a public library and its employees appear exempt from the arizona statute regarding the furnishing of harmful materials to minors via the internet

a public library and its employees probably could not be prosecuted under the arizona statute a.r.s. SS 13-3506.01, regarding the furnishing of harmful materials to minors via the internet. a.r.s. SS 13-3506.01(a) provides: it is unlawful for any person, with knowledge of the character of the item involved, to intentionally or knowingly transmit or send over the internet an item to a minor that is harmful to minors, when the person has knowledge or reason to know, at the time of the transmission that a minor in this state will receive the item. notably, posting material on an internet web site does not constitute the act of transmitting or sending an item over the internet. a.r.s. SS 13-3506.01(c).

arkansas - statute applies to public libraries and their employees with regard to print materials only

conclusion: a public library and its employees can be prosecuted under the arkansas statute, a.c.a. SS 5-68-502 (2001), regarding the dissemination to minors of materials harmful to minors, because the statute contains neither a public library exemption, nor a defense that a public library could invoke. notably, the statute applies to the non-commercial dissemination of print materials only.

analysis
1) a public library and its employees can be prosecuted under the arkansas statute regarding the non-commercial dissemination to minors of materials harmful to minors
a public library and its employees can be prosecuted under a.c.a. SS 5-68-502, regarding the dissemination to minors of print materials that are harmful to minors, because the statute contains neither a public library exemption, nor a defense that a public library could invoke. moreover, the statute applies to the non-commercial dissemination to minors of harmful materials. in accordance with a.c.a. SS 5-68-502 (2)(a), it shall be unlawful for any person, including, but not limited to, any persons having custody, control, or supervision of any commercial establishment, to knowingly: (2)(a)sell, furnish, present, distribute, allow to view, or otherwise disseminate to a minor, with or without consideration, any material which is harmful to minors.

2) statute does not apply to the dissemination to minors of harmful materials on the internet

in arkansas, a public library and its employees can be held liable for the dissemination to minors of print materials that are harmful for minors. material as defined in a.c.a. SS 5-68-501(6) means any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture, film, record, recording tape, cd-rom disk, magnetic disk memory, magnetic tape memory, video tape, or other media, but does not include matters displayed, transmitted, retrieved, or stored on the internet or other network for the electronic dissemination of information.

california public libraries presently not liable under statute

conclusion: public libraries are not liable in california, under cal pen code SS 313 (2001), for the distribution of harmful matter to minors. in accordance with cal. pen. code SS 313.3, an affirmative defense is available where the distribution or exhibition of harmful matter to minors was committed in aid of leg mate scientific or educational purpose. in accordance with moore v younger (1976) 54 ca3d 1122, 127 cal rptr 17, the defense exempts public librarians from liability for the distribution of harmful matter to minors.

analysis:

1) statute does not apply to public libraries as determined in, moore v younger (1976) 54 ca3d 1122, 127 cal rapt 171)

a public library cannot be prosecuted under the california statute, cal pen code SS 313, regarding the distribution of materials harmful to minors. in accordance with cal. pen. code SS 313.3, it shall be a defense in any prosecution in violation of this chapter that the act was committed in aid of legitimate scientific or educational purposes.

moore v younger (1976) 54 ca3d 1122, 127 cal rptr 171, is instructive regarding the proper interpretation of the defense provision as it applies to public libraries and their employees. in moore v. younger. plaintiff librarians and library associations had filed suit against the attorney general seeking to have the harmful to minors, section 313.3 statute declared unconstitutional. the lower court determined that librarians were exempted from coverage of 313(a), and plaintiffs appealed the ruling, seeking a declaration that the harmful matter statute pen. code, SSSS 313-313.5, making criminal the distribution of obscene material to minors and as applied to them was unconstitutional on its face and as applied to them. the court determined that plaintiffs were not an aggrieved party, since the trial court's judgment, declaring that it was the intention of the legislature to provide librarians with exemption from application of the statute, adequately protected all plaintiffs as librarians.

colorado statute does not apply to public libraries and their employees

conclusion: public libraries and their employees cannot be prosecuted under the colorado statute, c.r.s. 18-7-502 (2001), regarding the dissemination of materials harmful to minors, because the statute is premised upon the commercial dissemination of harmful materials to minors.

analysis:

1) statute applies to the commercial dissemination of harmful materials

c.r.s. 18-7-502 (2001) regarding the dissemination of harmful materials to minors does not apply to public libraries and their employees, because the statute is premised upon the commercial dissemination of harmful materials to minors. c.r.s. 18-7-502 (2001), provides: it shall be unlawful for any person knowingly to sell or loan for monetary consideration to a child, material harmful to minors. public libraries and their employees are not implicated in the statute, because they do not exchange their materials for monetary consideration.

connecticut - statute does not apply to public libraries

conclusion: public libraries and their employees can not be prosecuted under the connecticut statute regarding obscenity as to minors, conn. gen. stat. SS 53a-196 (2001), because the statute is premised upon the promotion of obscenity for monetary consideration.

analysis:

2) statute applies to the commercial dissemination of harmful materials

conn. gen. stat. SS 53a-196, regarding obscenity as to minors, does not apply to public libraries, because the statute is premised upon the promotion of obscenity to minors, for monetary consideration. conn. gen. stat. SS 53a-196(a) provides: a person is guilty of obscenity as to minors when he knowingly promotes to a minor, for monetary consideration, any material or performance which is obscene as to minors. public libraries are not implicated in the statute, because they do not exchange their materials for monetary consideration.

delaware - statute not applicable to public libraries and their employees

conclusion: public libraries and their employees can not be prosecuted under the delaware statute, 11 del. c. SS 1365 (2001)(i), regarding the dissemination to minors of harmful materials, pursuant to an exemption that specifically names public libraries among those who can not be prosecuted.

analysis:

1) statute contains an exemption for public libraries and their employees

a public library, and its employees can not be prosecuted under the delaware statute, 11 del. c. SS 1365 (2001)(i), regarding the dissemination to minors of harmful materials, because the statute contains an exemption as set forth in 11 del. c. SS 1365 (k)(3), that no person will be subject to prosecution where such person is a bona fide school, museum or public library or is acting in an official capacity as an employee of such organization or as a retail outlet affiliated with and serving the educational purposes of such organization.

district of columbia public libraries potentially liable under statute

conclusion:

public libraries could, under certain circumstances, be held liable in the district of columbia, under d.c. code SS 22-2201(b)(1), regarding the dissemination to minors of print materials and internet images that are not suitable for minors. although in accordance with d.c. code SS 22-2201(c), an affirmative defense is available where the dissemination of harmful materials is to institutions or individuals having educational justification for possessing the material, the applicability of the defense to public libraries is fact specific, and public libraries would not, under all factual scenarios, be permitted to invoke the defense. .

analysis:

1) statute could apply to library where their dissemination of materials not suitable for minors is to minors who have no scientific, educational or other special justification for possessing the material
a public library could be held liable in a prosecution under the district of columbia statute, d.c. code SS 22-2201(b)(1), regarding the dissemination to minors of materials that are not suitable for minors. in accordance with d.c. code SS 22-2201(c), it shall be an affirmative defense to a charge of violating subsection (a) or (b) of this section that the dissemination was to institutions or individuals having scientific, educational, or other special justification for possession of such material.

upon examination of the statutory language, it is evident that the language of the defense is vague. thus, in the absence of case law in this jurisdiction interpreting the defense statute, its applicability to public libraries is subject to varying fact-specific interpretations. one can readily anticipate numerous factual scenarios where children could access materials in a library, that are not suitable for minors, and for which they have no educational or other special justification for possessing the material. for example, where a 7 year old surfs the net at an unfiltered computer terminal in a public library, in contravention to library policy, and obtains materials that are not suitable for minors, without educational justification such as a research project, it appears highly unlikely that a library would be able to invoke the educational justification defense.

2) statute applies to the non-commercial dissemination of materials not suitable for minors
since d.c. code SS 22-2201 (b)(1)(a) pertains to the non-commercial dissemination of materials that are harmful to minors, a public library could be held liable under the statute, where it is unable to invoke the educational justification defense. d.c. code SS 22-2201 (b)(1)(a) states that it is unlawful to sell, deliver, distribute, or provide, or offer to agree to sell, deliver, distribute or provide to a minor materials which are not suitable for minors.

3) statute applies to both print materials and internet images

in the district of columbia, a public library could be held liable for the dissemination to minors of both print materials and internet images that are harmful to minors. material, as defined in d.c. code SS 22-2201(b)(1)(a), includes: (i) any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body, which depicts nudity, sexual conduct, or sado-masochistic abuse and which taken as a whole is patently offensive because it affronts prevailing standards in the adult community as a whole with respect to what is suitable material for minors, as well as, (ii) any book, magazine, or other printed matter however reproduced or sound recording, which depicts nudity, sexual conduct, or sado-masochistic abuse or which contains explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sado-masochistic abuse and which taken as a whole is patently offensive because it affronts prevailing standards in the adult community as a whole with respect to what is suitable material for minors.

clearly, the statute applies to print materials, which are plainly referenced as material not suitable for minors, in d.c. code SS 22-2201(b)(1)(a)(ii) aforementioned. the statute also applies to internet images, since the broad language or similar visual representation or image, set forth in d.c. code SS 22-2201(b)(1)(a)(i), can be construed to encompass internet images.

florida statute applies to public libraries and their employees with respect to obscene materials but not with respect to materials that are harmful to minors

conclusion: a public library and its employees can be prosecuted under the florida statute, fla. stat. SS 847.0133 (2001), regarding the dissemination to minors of obscene materials, because the statute contains neither a public library exemption, nor a defense that a public library and its employees could invoke. moreover, the statute applies to the non-commercial dissemination to minors of obscene print materials and internet images. notably, a public library and its employees cannot be prosecuted under the florida statute regarding the dissemination of harmful materials to minors, since the statute is premised on the dissemination of harmful materials for monetary consideration

analysis
1) a public library and its employees can be prosecuted under the florida statute regarding the dissemination to minors of obscene materials, since the statute contains no exemption or defense and applies to the non-commercial dissemination to minors of obscene materials
a public library and its employees can be prosecuted under fla. stat.

SS 847.0133 regarding the dissemination to minors of obscene materials, because the statute contains neither a public library exemption, nor a defense that a public library and its employees could invoke. moreover, the statute applies to the non-commercial dissemination of pornographic materials for minors. in accordance with fla. stat. SS 847.0133(1), it is unlawful for any person to knowingly sell, rent, loan, give away, distribute transmit, or show any obscene material to a minor.

2) statute applies to promotion of obscene print materials & internet images

in florida., a public library and its employees can be held liable for the dissemination to minors of obscene print materials and internet images. obscene material as referenced in fla. stat. SS 847.0133(1) means: any obscene book, magazine, periodical, pamphlet, newspaper, comic book, story paper, written or printed story or article, writing paper, card, picture, drawing, photograph, motion picture film, figure, image, videotape, videocassette, phonograph record, or wire or other recording, or any written, printed, or recorded matter of any such character which may or may not require mechanical or other means to be transmitted into auditory, visual or sensory representations of such character, or any article or instrument for obscene use , or purporting to be for obscene use or purpose. clearly the statute is broad and can be construed to encompass both print materials as well as internet images.

3) a public library and its employees cannot be prosecuted under the florida statute regarding the dissemination of harmful materials to minors, since the statute is premised on the dissemination of harmful materials for monetary consideration

notably, public libraries can not be prosecuted under the florida statute,

fla. stat. SS 847.012 (2001), regarding the prohibition of sale or other distribution of harmful materials to persons under 18 years of age, because the statute is premised upon the dissemination of harmful materials to minors, for monetary consideration. fla. stat. 847.012 provides: it is unlawful for any person knowingly to sell, rent, or loan for monetary consideration to a minor, materials which are harmful to minors.

georgia statute does not apply to public libraries

conclusion: public libraries can not be prosecuted under the georgia statute, o.c.g.a. SS 16-12-103 (2001), regarding the dissemination to minors of material harmful to minors, because public libraries are exempt from prosecution in accordance with o.c.g.a. SS 16-12-104.

analysis:

1) statute contains an exemption for public libraries

public libraries can not be prosecuted under the georgia statute, o.c.g.a. SS 16-12-103, regarding the dissemination to minors of materials harmful to minors, because public libraries are clearly within the exemption set forth in o.c.g.a. SS 16-12-104, which states: the provisions of code section 16-12-103 shall not apply to any public library operated by the state or any of its political subdivisions nor to any library operated as a part of any school, college, or university. notably, the exemption does not offend the equal protection clause of the federal constitution. american booksellers v. webb, 919 f.2d 1493 (11th cir. 1990), cert. denied, 500 u.s. 941, 111 s. ct. 2237, 114 l. ed. 2d 479 (1991). however, public libraries may be required by legislation to take appropriate action to protect minors from exposure to materials that fall within the definition of harmful to minors. 1995 op. att'y gen. no. u95-24.

hawaii -- statute applies to public libraries

conclusion: a public library and its employees can be prosecuted under the hawaii statute hrs SS 712-1215 (2001), regarding the promoting pornography for minors, because the statute contains neither a public library exemption, nor a defense which a public library could invoke. moreover, the statute applies to the non-commercial promotion of print materials and internet images that are pornographic for minors.

analysis
1) a public library and its employees can be prosecuted under the hawaii statute re: promoting pornography for minors, since it contains no exemption/defense and applies to the non-commercial promotion of materials that are pornographic for minors
a public library and its employees can be prosecuted under hawaii statute hrs SS 712-1215, regarding promoting pornography for minors, because the statute contains neither a public library exemption, nor a defense that a public library could invoke. moreover, the statute applies to the non-commercial dissemination of pornographic materials for minors. in accordance with hrs SS 712-1215(1)(a), a person commits the offense of promoting pornography for minors if: knowing its character and content, the person disseminates to a minor material that is pornographic for minors.

2) statute applies to promotion of print materials & internet images that are pornographic for minors

the hawaii statute applies to both print materials and internet images. material as defined in hrs SS 712-1210(3) means any printed matter, visual representation, or sound recording, and includes but is not limited to books, magazines, motion picture films, pamphlets, newspapers, pictures, photographs, drawings, sculptures, and tape or wire recordings. clearly, the statute applies to print materials. by using the language includes but is not limited to, the legislature set forth a very broad definition of materials, which can be construed to encompass internet images.

idaho employees of public libraries potentially liable under statute

conclusion: employees of public libraries, under certain circumstances, could be prosecuted in idaho, under idaho code SS 18-1515 (2000), for disseminating material harmful to minors. although in accordance with idaho code SS 18-1517(d), an affirmative defense is available to public libraries and those acting in their capacity as employees of a library, arguably library employees could not invoke the defense under all circumstances. since idaho code SS 18-1515 pertains to the non-commercial dissemination of print materials and internet images that are harmful to minors, public library employees could be held liable under the statute, where they are unable to invoke the defense.

analysis:
1) statute could apply to employee acting outside employment capacity in disseminating material harmful to minors
employees of a public library could be prosecuted for disseminating material harmful to minors under idaho code SS 18-1515. in accordance with idaho code SS 18-1517(1) (d): (1) in any prosecution for disseminating material harmful to minors, it is an affirmative defense that: (d) the defendant was a bona fide school, college, university, museum or public library, or was acting in his capacity as an employee of such an organization or a retail outlet affiliated with and serving the educational purposes of such an organization.

although the defense protects a bona fide library and public library employees acting within their capacity, arguably the defense would not be available to public library employees who act beyond their capacities as employees, without authority. for example, where a public library employee knowingly permits a minor to access an unfiltered internet screen, in contravention to the librarys established internet use policy requiring minors to use filtered terminals, and where the minor obtains material which is harmful to him, in a prosecution under the statute, the library employee might not be able to invoke the aforementioned defense.

2) statute applies to the non-commercial dissemination of materials not suitable for minors
since idaho code SS 18-1515 pertains to the non-commercial dissemination of materials, which are harmful to minors, a public library employee could be held liable under the statute, where s/he is unable to invoke the public library/capacity defense. idaho code SS 18-1515(1) states that a person is guilty of disseminating material harmful to minors when: he knowingly gives or makes available to a minor or promotes or possesses with intent to promote to minors, or he knowingly sells or loans to a minor for monetary consideration, material which is harmful to minors.

3) statute applies to both print materials and internet images

in idaho, a public library employee could be held liable for the dissemination to minors of both print materials and internet images that are harmful to minors. material, as defined in idaho code SS 18-1514 means: anything tangible which is harmful to minors, whether derived through the medium of reading, observation or sound. clearly, the broad definition of materials can be construed to encompass internet images in addition to print materials.

illinois public libraries and their employees potentially liable under statute where harmful material not furnished for scientific or educational purpose

conclusion: public libraries and employees of public libraries, under certain circumstances, could be held liable in illinois under 720 ilcs 5/11-21 (2001),

regarding the dissemination of harmful material to minors. although in accordance with 720 ilcs 5/11-21(2001)(e)(1), an affirmative defense is available where the defendant is a public library acting in aid of a legitimate scientific or educational purpose, and is available where the act charged was committed in aid of legitimate scientific or educational purpose, the applicability of the defense to public libraries and their employees is fact specific, and public libraries and their employees would not, under all factual scenarios, be permitted to invoke the defense. since 720 ilcs 5/11-21 pertains to the non-commercial dissemination of materials that are harmful to minors, public libraries and their employees could be held liable under the statute, where they are unable to invoke the defense.

analysis:

1) statute could apply to a public library and its employees where harmful material is disseminated to minors, not in aid of a legitimate scientific or educational purpose
a public library and library employees could be held liable in a prosecution under s.c. 720 ilcs 5/11-21 regarding the dissemination of harmful material to minors. in accordance with 720 ilcs 5/11-21(e)(1), nothing in this section shall prohibit any public library or any library operated by an accredited institution of higher education from circulating harmful material to any person under 18 years of age, provided such circulation is in aid of a legitimate scientific or educational purpose, and it shall be an affirmative defense in any prosecution for a violation of this section that the act charged was committed in aid of legitimate scientific or educational purposes.

upon examination of the statutory language, it is evident that the language of the defense is vague. thus, in the absence of case law in this jurisdiction interpreting the defense statute, its applicability to public libraries and their employees is subject to varying fact-specific interpretations. however, one can readily anticipate numerous factual scenarios where public libraries and their employees disseminate harmful materials to minors, absent a legitimate scientific or educational purpose. for example, where a library and/or library employee knowingly permits a 7 year old with no educational justification such as a research project, to access obscene materials on an unfiltered internet screen, in contravention to the librarys established internet use policy requiring minors to use filtered terminals, it is unlikely that a library and its employees would be able to successfully argue that the dissemination was in aid of a legitimate scientific or educational purpose.

2) statute applies to the non-commercial dissemination of materials harmful to minors
since 720 ilcs 5/11-21 pertains to the non-commercial dissemination of materials that are harmful to minors, public libraries and their employees could be held liable under the statute, where they are unable to invoke the aforementioned defense. SS 720 ilcs 5/11-21 provides: a person who, with knowledge that a person is a child, that is a person under 18 years of age, or who fails to exercise reasonable care in ascertaining the true age of a child, knowingly distributes to or sends or causes to be sent to, or exhibits to, or offers to distribute or exhibit any harmful material to a child, is guilty of a misdemeanor. SS 720 ilcs 5/11-21.

3) statute applies to both print materials and internet images

in illinois, a public library and its employees could be held liable for the dissemination to minors of both print materials and internet images that are harmful to minors. in accordance with SS 720 ilcs 5/11-21(b)(2), material means any writing, picture, record or other representation or embodiment. clearly the statute is broad and can be construed to encompass both print materials and internet images.

indiana employees of public libraries potentially liable under statute when acting outside the scope of their employment

conclusion: employees of public libraries, under certain circumstances, could be prosecuted in indiana, under burns ind. code. ann. SS 35-49-3-3 (2001), regarding the provision of obscene matter and performances before minors. although in accordance with burns ind. code ann. SS 35-49-3-4, an affirmative defense is available to public libraries and employees of public libraries acting within their scope of employment, arguably library employees could not invoke the defense under all circumstances. since burns ind. code. ann. SS 35-49-3-3 pertains to the non-commercial provision of obscene print materials and internet images, public library employees could be held liable under the statute, where they are unable to invoke the defense.

analysis:
1) statute could apply to employee acting outside scope of his employment in disseminating material harmful to minors
employees of a public library could possibly be prosecuted for providing obscene matter and performances before minors under burns ind. code. ann. SS 35-49-3-3. in accordance with burns ind. code ann. SS 35-49-3-4 (2), it is an affirmative defense to prosecution under the statute, that the matter was disseminated or displayed to or that the performance was performed before the recipient by a bona fide school, museum, or public library that qualifies for certain property tax exemptions under ic 6-1.1-10, or by an employee of such a school, museum, or public library acting within the scope of his employment.

although the defense protects a bona fide public library and public library employees acting within the scope of their employment, the defense might possibly be unavailable to public library employees who act beyond the scope of their employment, without authority. for example, where a public library employee knowingly permits a minor to access an unfiltered internet screen, in contravention to the librarys established internet use policy requiring minors to use filtered terminals, and where the minor obtains obscene material, in a prosecution under the statute, the library employee might not be able to invoke the aforementioned defense.

2) statute applies to the non-commercial provision of obscene materials to minors
since burns ind. code. ann. SS 35-49-3-3 pertains to the non-commercial provision of obscene materials to minors, a public library employee could be held liable under the statute, where s/he is unable to invoke the aforementioned defense. burns ind. code. ann. SS 35-49-3-3(a) states that a person is guilty of providing obscene matter and performances before minors when he knowingly or intentionally: 1) disseminates matter to minors that is harmful to minors.

3) statute applies to both print materials and internet images

in indiana, a public library employee could be held liable for the dissemination to minors of both print materials and internet images that are harmful to minors. matter, as defined in burns ind. code. ann. SS 35-49-1-3 means: (1) any book, magazine, newspaper, or other printed or written material; (2) any picture, drawing, photograph, motion picture, or other pictorial representation; (3) any statue or other figure; (4) any recording, transcription, or mechanical, chemical, or electrical reproduction; or (5) any other articles, equipment, machines or materials. clearly, the statute is broad and the definition of materials can be construed to encompass internet images in addition to print materials.

iowa public libraries potentially liable under statute

conclusion:

public libraries, under certain circumstances, could be prosecuted in iowa, under iowa code SS 728.2 (2001) for the dissemination and exhibition of obscene print materials and internet images to minors. although in accordance with iowa code SS 728.7, an exemption is available to public libraries, where a childs use of materials is appropriate for educational purposes, the applicability of the exemption to public libraries is fact specific, and public libraries would not, under all factual scenarios, be permitted to invoke the exemption.

analysis:

1) statute could apply to public libraries for dissemination of obscene materials to minors, where the child uses materials which are not appropriate for educational purposes
a public library could be held liable in a prosecution under iowa code SS 728.2, regarding the dissemination of obscene materials to minors. in accordance with iowa code SS 728.7, nothing in this chapter prohibits the use of appropriate material for educational purposes in any accredited school, or any public library, or in any educational program in which the minor is participating. nothing in this chapter prohibits the attendance of minors at an exhibition or display of art works or the use of any materials in any public library.

upon examination of the statutory language, it is evident that the language of the exemption is vague. thus, in the absence of case law in this jurisdiction interpreting the exemption, its applicability to public libraries is subject to varying fact-specific interpretations. one can readily anticipate numerous factual scenarios where children could access and use materials in a library, which are obscene, and are not appropriate for educational purposes. for example, where a 7 year old surfs the net at an unfiltered computer terminal in a public library, in contravention to library policy, and obtains materials that are obscene, and are not appropriate for educational purposes, it appears highly unlikely that a library would be able to invoke the educational purpose exemption.

2) statute applies to the non-commercial dissemination of obscene materials to minors
since iowa code SS 728.2, pertains to the non-commercial dissemination of obscene materials to minors, a public library could be held liable under the statute where it is unable to invoke the educational purpose exemption. iowa code SS 728.2 states:
any person, other than the parent or guardian of the minor, who knowingly disseminates or exhibits obscene material to a minor, including the exhibition of obscene material so that it can be observed by a minor on or off the premises where it is displayed, is guilty of a public offense and shall upon conviction be guilty of a serious misdemeanor.

3) statute applies to both print materials and internet images

in iowa, a public library could be held liable for the dissemination to minors of obscene print materials and internet images. material, as defined in iowa code SS 728.1(3) means, any book, magazine, newspaper or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials. clearly, the statute is broad and encompasses both print materials and internet images.

kansas public libraries potentially liable under statute

conclusion: in kansas, public libraries, under some circumstances, could be prosecuted for promoting obscenity as to minors in accordance with k.s.a. SS 21-4301a. although under k.s.a. SS 21-4301a(b)(3), an affirmative defense is available to an officer, director, trustee or employee of a public library, in cases where the obscene material was acquired by a public library and was disseminated in accordance with regular library policies, arguably the defense could not be invoked under all circumstances. since k.s.a. SS 21-4301a pertains to the non-commercial dissemination of print materials and internet images that are harmful to minors, a public library could be held liable under the statute, where it is unable to invoke the defense.

analysis:

1) affirmative defense available to public libraries

in kansas, public libraries, under some circumstances, could be prosecuted for promoting obscenity as to minors in accordance with k.s.a. SS 21-4301a. under k.s.a. SS 21-4301a(b)(3), it is an affirmative defense to any prosecution under the section that: the defendant is an officer, director, trustee or employee of a public library and the allegedly obscene material was acquired by a public library and was disseminated in accordance with regular library policies approved by its governing body.

although the defense officers directors and employees of public libraries under circumstances where the allegedly obscene material acquired and disseminated by the library in accordance with regular library policies approved by its governing body, arguably the defense would not available to those individuals in cases where they have disseminated the material, in contravention to library policy. for example, where a public library employee knowingly permits a minor to access an unfiltered internet screen, in violation of the librarys established internet use policy requiring minors to use filtered terminals, and where the minor obtains material which is obscene, in a prosecution under the statute, the library employee might not be able to invoke the aforementioned defense.

2) statute applies to the non-commercial promotion of obscene materials to minors
since k.s.a. SS 21-4301a pertains to the non-commercial promoting of obscenity to minors, a public library could be held liable under the statute, where it is unable to invoke the aforementioned defense. promoting obscenity, as set forth in k.s.a. SS 21-4301(a)(1) includes knowingly or recklessly manufacturing, issuing, selling, giving, providing, lending, mailing, delivering, transmitting, publishing, distributing, circulating, disseminating, presenting, exhibiting or advertising any obscene material or device.

3) statute applies to both print materials and internet images

in kansas, a public library could be held liable for the promotion of obscene print materials and internet images to minors. material, as defined in k.s.a. SS 21-4301(c)(2) means: any tangible thing which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound other manner. clearly, the broad definition of materials can be construed to encompass internet images in addition to print materials.

kentucky public libraries and their employees potentially liable under statute

conclusion:

public libraries and their employees, under certain circumstances, could be held liable in kentucky, under k.r.s. SS 531.030, regarding the distribution of obscene matter to minors. although in accordance with k.r.s. SS 531.070, an exemption is available to persons having a bona fide scientific or educational justification for distributing obscene matter to minors, the applicability of the defense to public libraries and their employees is fact specific, and public libraries and their employees would not, under all factual scenarios, be permitted to invoke the exemption. since k.r.s. SS 531.030.pertains to the non-commercial distribution to minors of obscene print matter and internet images, a public library and its employees could be held liable under the statute.

analysis:

1) statute could apply to public library and its employees where their distribution of obscene matter to minors is without scientific, educational or other governmental justification
a public library and its employees could be held liable in a prosecution under the kentucky statute, k.r.s. SS 531.030, regarding the distribution of obscene matter to minors. in accordance with k.r.s. SS 531.070, the prohibitions and penalties imposed in this chapter shall not extend to persons having a bona fide scientific, educational, governmental, or other similar justification for conduct which would, except for such justification, be criminal under this chapter.

upon examination of the statutory language, it is evident that the language of the exemption is vague. thus, in the absence of case law in this jurisdiction interpreting the exemption, its applicability to public libraries and their employees is subject to varying fact-specific interpretations. one can readily anticipate numerous factual scenarios taking place in a public library, where the distribution of obscene matter is made to a child, without educational or scientific justification. for example, where a 7 year old surfs the net at an unfiltered computer terminal in a public library, in contravention to library policy, and obtains matter that is obscene, without educational justification such as a research project, it appears highly unlikely that a library would be able to invoke the educational justification exemption.

2) statute applies to the non-commercial distribution to minors of obscene matter
since k.r.s. SS 531.030.pertains to the non-commercial distribution to minors of obscene matter, a public library and its employees could be held liable under the statute, where they are unable to invoke the educational justification exemption.. k.r.s. SS 531.030 state a person is guilty of distribution of obscene material to minors when, knowing a person to be a minor, or having possession of such facts that he should reasonably know that such person is a minor, and with knowledge of the content and character of the material, he knowingly: (a) sends or causes to be sent; or (b) exhibits; or
(c) distributes, or offers to distribute, obscene material to a minor.

3) statute applies to both print materials and internet images

in kentucky, a public library and its employees could be held liable for the dissemination to minors of obscene print materials and internet images. as defined in krs SS 531.010(2), "matter" means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines, or materials. clearly, the statute is broad and applies to print materials and internet images.

louisiana - statute does not apply to public libraries

conclusion: public libraries and their employees can not be prosecuted under the louisiana statute, la. r.s. 14:91.11 (2001), regarding the dissemination to minors of harmful materials to minors, because the statute applies only to the dissemination to minors of materials harmful to minors, at newsstands or other commercial establishments.

analysis:

1) statute applies to the dissemination to minors of materials harmful to minors,

at commercial establishments

louisiana statute, la. r.s. 14:91.11, regarding the dissemination to minors of material harmful to minors, does not apply to public libraries, because the statute applies only to the dissemination of such materials at commercial establishments. la. r.s. 14:91.11(1) states: (1) the unlawful sale, exhibition, rental, leasing, or distribution of material harmful to minors is the intentional sale, allocation, distribution, advertisement, dissemination, exhibition, or display of material harmful to minors, to any unmarried person under the age of seventeen years, or the possession of material harmful to minors with the intent to sell, allocate, advertise, disseminate, exhibit, or display such material to any unmarried person under the age of seventeen years, at a newsstand or any other commercial establishment which is open to persons under the age of seventeen years.

note, however, that under la. r.s. 14.92, permitting any child under the age of 17 to visit any place where sexually indecent material, of any nature, isdisplayed or exhibited constitutes the crime of contributing to the delinquency of juveniles.

maine public libraries potentially liable under statute where dissemination of materials is not for educational purposes

conclusion: under certain circumstances, public libraries could be prosecuted under maines statute,17 m.r.s. SS 2911(2) (2000), regarding the dissemination of obscene matters to minors. although in accordance with 17 m.r.s. SS 2911(2)(a), the statute does not apply to a librarys noncommercial distribution or exhibition of obscene material to minors for any purely educational purpose, an examination of the exempting language reveals that it its application to libraries is fact specific, and thus, public libraries would not be immune from prosecution under all circumstances.

analysis:

1) statute could apply to library where dissemination of obscene matter to minors is not for purely educational purposes

a public library could be prosecuted under the maine statute,17 m.r.s. SS 2911(2), regarding the dissemination of obscene matter to minors. in accordance with 17 m.r.s. SS 2911(2)(a), this section shall not apply to any noncommercial distribution or exhibition for purely educational purposes by any library, art gallery, museum, public school, private school or institution of learning, nor to any commercial distribution or exhibition by any art gallery or museum.

upon examination of the exempting statutory language, it is evident that the language is ambiguous. thus, in the absence of case law in this jurisdiction interpreting the exempting language, its applicability to public libraries is subject to varying fact-specific interpretations. on one hand, public libraries might contend that the exempting language should be invoked to protect all disseminations of obscene materials to minors, since ideally, the purpose of public libraries and their distributions and exhibitions is educational. however, one can imagine a factual scenario, with regard to internet materials for example, in which a library disseminates harmful materials to a minor, where there is no educational purpose for the distribution of the material to the minor. in such a scenario, a library might not fall within the ambit of the exempting language, and could be held liable for the dissemination of the materials to the minor.

2) statute applies to the non-commercial dissemination of obscene matter to minors
since 17 m.r.s. SS 2911(2), pertains to the non-commercial dissemination of obscene matter to minors, a public library could be held liable under the statute, where its dissemination can not be justified as having an educational purpose. 17 m.r.s. SS 2911(2), states that: a person is guilty of disseminating obscene matter to a minor if he knowingly distributes, or exhibits or offers to distribute or exhibit to a minor, any obscene matter declared obscene.

3) statute applies to both print materials and internet images

in maine, a public library could be held liable for the dissemination to minors of both print matter and internet images that are obscene. matter, as defined in 17 m.r.s. SS 2911(1)(c), " means any printed or written material, any picture, photograph, motion picture or other visual representation, that is obscene. clearly, the definition of matter is broad and can be construed to apply to both print materials and internet images.

maryland public libraries and their employees potentially liable under statute

conclusion: public libraries and their employees of public libraries, under certain circumstances, could be held liable in maryland, under md. ann. code art. 27, SS 419 (2001), for their dissemination of obscene materials to minors. although in accordance with md. ann. code art. 27, SS 423, an exemption is available to persons having educational justification for possessing or distributing obscene matter, the applicability of the defense to public libraries and their employees is fact specific, and public libraries would not, under all factual scenarios, be permitted to invoke the exemption.

since md. ann. code art. 27, SS 419 pertains to the non-commercial dissemination of obscene print materials and internet images, public libraries and their employees could be held liable under the statute, where they are unable to invoke the exemption.

analysis:
1) statute could apply to public libraries and their employees where their dissemination of obscene material is to minors who have no scientific or educational justification for possessing the material
public libraries and their employees could be held liable in a prosecution under md. ann. code art. 27, SS 419, regarding the dissemination of obscene materials to minors. in accordance with md. ann. code art. 27, SS 423(a), the prohibitions and penalties imposed in this subtitle shall not extend to persons having bona fide scientific, educational, governmental, artistic, news, or other similar justification for possessing or distributing such matter, or to distributions thereof pursuant to such justification.

upon examination of the statutory language, it is evident that the language of the exemption is vague. thus, in the absence of case law in this jurisdiction interpreting the exemption, its applicability to public libraries and their employees is subject to varying fact-specific interpretations. one can readily anticipate numerous factual scenarios where children could access obscene materials in a library, for which they have no educational or other special justification for possessing . for example, where a 7 year old surfs the net at an unfiltered computer terminal in a public library, in contravention to library policy, and obtains materials which is obscene, without educational justification such as a research project, it appears highly unlikely that a library or its employees would be able to invoke the educational justification exemption.

2) statute applies to the non-commercial dissemination to minors of obscene materials
since md. ann. code art. 27, SS 419 pertains to the non-commercial dissemination of obscene materials to minors, public libraries and their employees could be held liable under the statute, where they are unable to invoke the educational justification exemption. md. ann. code art. 27, SS 419(2) states: a person may not willfully or knowingly display or exhibit to any person under the age of 18 years any still picture, photograph, book, pocket book, pamphlet, magazine, videodisc, videotape, film, computer disc, or recorded telephone messages the cover or content of which is principally made up of obscene descriptions or depictions of illicit sex, or which consists of obscene pictures of nude or partially denuded figures.

3) statute applies to both print materials and internet images

in maryland, public libraries and their employees could be held liable for the dissemination to minors of obscene print materials and internet images. under md. ann. code art. 27, SS 419(2), a person may not willfully or knowingly display or exhibit to any person under the age of 18 years any still picture, photograph, book, pamphlet, magazine, video disc, videotape, film, computer disk, or recorded telephone message the cover or content of which is principally made up of obscene descriptions of illicit sex, or which consists of obscene pictures of nude or partially denuded figures. the term still picture would appear to encompass static images displayed on a computer screen.

massachussetts- statute does not apply to public libraries or their employees

conclusion: public libraries and their employees cannot be prosecuted under the massachusetts statute, mass. ann. laws ch. 272, SS 28 (2001) regarding the dissemination to minors of harmful materials, pursuant to a defense that specifically names public libraries and their employees among those who cannot be prosecuted.

analysis:

1) statute contains a defense for public libraries and their employees

a public library, and its employees can not be prosecuted under the massachusetts statute, mass. ann. laws ch. 272, SS 28, regarding the dissemination to minors of harmful materials, because the statute contains a defense which states: it shall be a defense in any prosecution under this section that the defendant was in a parental or guardianship relationship with the minor. it shall also be a defense in any prosecution under this section if the evidence proves that the defendant was a bona fide school, museum or library, or was acting in the course of his employment as an employee of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization.

michigan - public library employees not liable under statute

conclusion: employees of public libraries cannot be found liable in michigan, under mcls SS 722.675 (2001), for disseminating sexually explicit internet or print matter to minors, because they are clearly within the exception set forth in mcls SS 722.676.

analysis:
1) statute does not apply to public library employees
employees of a public library cannot be prosecuted for disseminating sexually explicit internet or print matter to minors. in accordance with mcls SS 722.676, persons exempted from liability include: (d) a librarian employed by a library of a public or private elementary or secondary school that complies with the revised school code, 1976 pa 451, mcl 380.1 to 380.1852, or employed by a public library, who disseminates sexually explicit matter in the course of that person's employment.

minnesota - statute does not apply to public libraries

conclusion: public libraries and their employees cannot be prosecuted under the minnesota statute, minn. stat. SS 617.295 (2000), regarding the dissemination to minors of harmful materials, pursuant to an exemption that specifically names public libraries and their employees among those who cannot be prosecuted. moreover, the statute pertains to the commercial dissemination of materials harmful to minors.

analysis:

1) statute contains an exemption for public libraries and their employees and statute pertains to the commercial dissemination of materials harmful to minors

public libraries and their employees can not be prosecuted under the minnesota statute, minn. stat. SS 617.295, regarding the dissemination to minors of harmful materials, because the statute contains an exemption as set forth in minn. stat. SS 617.295(a) for: recognized and established schools, churches, museums, medical clinics and physicians, hospitals, public libraries, governmental agencies or quasi governmental sponsored organizations, and persons acting in their capacity as employees or agents of such organization.

additionally, minn. stat. SS 617.295 is premised upon the commercial dissemination of harmful materials to minors. minn. stat. SS 617.295 provides: it is unlawful for any person knowingly to sell or loan for monetary consideration to a minor any harmful material. public libraries are not implicated in the statute, because they do not exchange their materials for monetary consideration.

mississippi statute applies to public libraries

conclusion: a public library and its employees can be prosecuted under the mississippi statute, miss. code ann. SS97-5-27 (2001), regarding the dissemination of sexually oriented material to persons under eighteen years of age, because the statute contains neither a public library exemption, nor a defense that a public library could invoke. furthermore, the statute applies to the non-commercial dissemination to minors, of sexually oriented print material and internet images.

analysis:

1) public libraries and their employees can be prosecuted under miss. code

ann. SS97-5-27, which contains no exemption/defense and applies to the non-commercial dissemination of sexually oriented materials to minors

a public library and its employees can be prosecuted under the mississippi statute, miss. code ann. SS97-5-27, regarding the dissemination of sexually oriented material to persons under eighteen years of age, because the statute contains neither a public library exemption nor a defense that a public library could invoke. moreover, the statute applies to the non-commercial dissemination of sexually oriented materials to minors. in accordance with miss. code ann. SS97-5-27(1), a person disseminates sexually oriented material within the meaning of this section if he: (c) exhibits, presents, rents, sells, delivers or provides, or offers or agrees to exhibit, present, rent or to provide any sexually oriented material.

2) statute applies to dissemination of sexually oriented print materials and internet images

in mississippi, a public library can be held liable for the dissemination of sexually oriented print materials and internet images. in accordance with miss. code ann. SS97-5-27(1)(c), one can be prosecuted under the statute for disseminating any sexually oriented still or motion picture, film, filmstrip or projection slide, or sound recording, sound tape or sound track or any matter or material of whatever form which is a representation, embodiment, performance or publication that is sexually oriented. [1] clearly, the statute applies to print materials. the language any matter or material of whatever form which is a representation sets forth a very broad definition of materials that can be construed to encompass internet images.

missouri --statute applies to public libraries

conclusion: a public library and its employees can be prosecuted under the missouri statute SS 573.040 r.s.mo. (2000), regarding furnishing pornographic materials to minors, because the statute contains neither a public library exemption, nor a defense which a public library could invoke. moreover, the statute applies to the non-commercial furnishing of print materials and internet images that are pornographic for minors.

analysis
1) a public library and its employees can be prosecuted under the missouri statute regarding furnishing pornographic materials to minors, since it contains no exemption or defense and applies to the non-commercial furnishing of materials
a public library and its employees can be prosecuted under missouri statute, SS 573.040 r.s.mo, regarding furnishing pornographic materials to minors, because the statute contains neither a public library exemption, nor a defense that a public library could invoke. moreover, the statute applies to the non-commercial furnishing of pornographic materials to minors. in accordance with SS 573.040(1) r.s.mo, a person commits the crime of furnishing pornographic material to minors if, knowing its content and character, he or she: (1) furnishes any material pornographic for minors, knowing that the person to whom it is furnished is a minor or acting in reckless disregard of the likelihood that such person is a minor. in accordance with SS 573.010(5) r.s.mo, to furnish means: to issue, sell, give, provide, lend, mail, deliver, transfer, circulate, disseminate, present, exhibit or otherwise provide.

2) statute applies to furnishing to minors of pornographic print materials & internet images

in missouri, a public library and its employees can be held liable for the furnishing to minors of pornographic print materials and internet images. material as defined in SS573.010(6) means: anything printed or written, or any picture, drawing, photograph, motion picture film, videotape or videotape production, or pictorial representation, or any recording or transcription, or any mechanical, chemical, or electrical reproduction, or stored computer data, or anything which is or may be used as a means of communication. "material" includes undeveloped photographs, molds, printing plates, stored computer data and other latent representational objects. clearly by the plain language of the statute, the statute is broad, and includes both print materials and internet images.

montana - statute does not apply to public libraries or their employees

conclusion: public libraries and their employees cannot be prosecuted under montana statute, mont. code anno. SS 45-8-206 (2001), regarding the dissemination of obscene material to minors, because the statute is premised upon the commercial dissemination of obscene materials to minors.

analysis:

1) statute applies to the commercial dissemination of obscene materials

mont. code anno. SS 45-8-206 (2001), regarding obscenity as to minors, does not apply to public libraries, because the statute is premised upon the commercial dissemination of obscenity to minors. mont. code anno. SS 45-8-206 provides: a person having custody, control, or supervision of any commercial establishment or newsstand may not knowingly or purposely, disseminate obscene materials to minors. public libraries are not implicated in the statute, because they do not exchange their materials for monetary consideration.

nebraska statute does not apply to public libraries

conclusion: public libraries and their employees can not be prosecuted under r.r.s. neb. SS 28-808, regarding the sale to a minor of obscene literature and material, because the statute is premised upon the commercial dissemination of obscenity to minors.

analysis:
1) statute applies to the commercial dissemination of obscenity to minors
r.r.s. neb. SS 28-808(1), regarding the sale to a minor of obscene literature and materials does not apply to public libraries because the statute is premised upon the commercial dissemination of obscenity to minors. r.r.s. neb. SS 28-808(1) provides: it shall be unlawful for a person to knowingly sell, deliver, distribute, display for sale, or provide to a minor knowingly to possess with intent to sell, deliver, distribute, display for sale, or provide to a minor or knowingly to possess with intent to sell, deliver, distribute, display for sale, or provide to a minor. public libraries are not implicated in the statute, because they are not commercial entities that exchange their materials for monetary consideration.

nevada statute does not apply to public libraries but employees of public libraries are potentially liable under statute

conclusion: public libraries cannot be prosecuted under the nevada statute,

nev. rev. stat. ann. SS 201.265 (2001), regarding the dissemination of harmful print materials and internet images to minors, because public libraries are exempt from prosecution in accordance with nev. rev. stat. ann. SS 201.2655(1). notably however, employees of public libraries, under certain circumstances, could be held liable under nev. rev. stat. ann. SS 201.265, for disseminating harmful materials to minors. although in accordance with nev. rev. stat. ann. SS 201.2655(2), employees of libraries who are acting within their scope of employment are exempt from liability, arguably library employees could not invoke the exemption under all circumstances. moreover, since nev. rev. stat. ann. SS 201.265, pertains to the non-commercial dissemination of internet images and print materials that are harmful to minors, images, public library employees could be prosecuted under the statute, where they are unable to invoke the exemption.

analysis:

1) statute could apply to a public library employee who disseminates harmful materials to minors where employee acts outside the scope of his employment

public libraries can not be prosecuted under nev. rev. stat. ann. SS 201.265, regarding the dissemination of harmful materials to minors, because public libraries are clearly within the exemption set forth in nev. rev. stat. ann. SS 201.2655(1), which creates an exemption for: a university, community college, school, museum or library which is operated by or which is under the direct control of this state or a political subdivision of this state.

however, employees of a public library could be prosecuted for disseminating harmful materials to minors. in accordance with nev. rev. stat. ann. SS 201.2655(2), an exemption exists for an employee or independent contractor of an institution listed in subsection 1, if the employee or independent contractor is acting within the scope of his employment or contractual relationship. although the aforementioned exemption protects library employees acting within their scope of employment, the exemption would not be available to library employees who act beyond their scope of employment in their disseminating of indecent material to minors. for example, where a public library employee, without the requisite authority, and in contravention to the librarys established internet use policy which requires minors to use filtered terminals, knowingly permits a minor to access an unfiltered internet screen, whereby the minor obtains internet materials which are harmful to minors, in a prosecution under the statute, it is questionable whether a public library employee would be able to invoke the exemption.

2) statute applies to non-commercial dissemination of internet images and print materials. since nev. rev. stat. ann. SS 201.265 pertains to the non-commercial dissemination of internet images and print materials that are harmful to minors, public library employees could be prosecuted under the statute, where they are unable to invoke the exemption. the statute states: a person is guilty of a misdemeanor if the person knowingly: 1) distributes or causes to be distributed to a minor material that is harmful to minors

3) statute applies to both print materials and internet images

in nevada, a public library could be held liable for the dissemination to minors of both print materials and internet images that are harmful to minors. the definition of material as set forth in nev. rev. stat. ann. SS 201.258, includes: 1. a book, pamphlet, magazine, newspaper, printed advertising or other printed or written material; 2. a motion picture, photograph, picture, drawing, statue, sculpture or other visual representation or image; or 3. a transcription, recording or live or recorded telephone message. clearly, the broad definition of material can be construed to encompass both print materials and internet images.

new hampshire --statute applies to public libraries

conclusion: a public library and its employees can be prosecuted under the new hampshire statute rsa 571-b:2 (2000), regarding the dissemination to minors of materials that are harmful to minors, because the statute contains neither a public library exemption, nor a defense which a public library could invoke. moreover, the statute applies to the non-commercial promotion of print materials and internet images that are pornographic for minors.

analysis
1) a public library and its employees can be prosecuted under the new hampshire statute regarding the dissemination to minors of materials harmful to minors, since it contains no exemption or defense and applies to the non-commercial dissemination of materials
a public library and its employees can be prosecuted under new hampshire statute rsa 571-b:2, regarding the dissemination to minors of materials harmful to minors, because the statute contains neither a public library exemption, nor a defense that a public library could invoke. additionally, the legislature in drafting the statute, clearly meant to hold all persons liable for their dissemination of harmful materials to minors. the legislature stated: "it is the express intent of the general court that rsa 571-b relating to exposing

minors to harmful materials and rsa 650 relating to obscene matter shall be enforced to apply only to those persons actually responsible for the production and dissemination of pornographic or obscene materials." legislative intent. 1976, 46:6, eff. june 1, 1976. moreover, the statute applies to the non-commercial dissemination of pornographic materials for minors. in accordance with rsa 571-b:2, it shall be unlawful for any person knowingly to give, sell, loan or otherwise provide with or without monetary consideration, to a minor, materials that are harmful to minors.

2) statute applies to dissemination to minors of print materials & internet images that are harmful to minors

in new hampshire, a public library and its employees can be held liable for the dissemination of print materials and internet images that are harmful for minors. material as referenced in rsa 571-b:2, includes: (a) any picture, photograph, drawing, sculpture, motion picture film or similar visual representation or image of a person or portion of the human body which depicts sexual conduct and which is harmful to minors, or (b) any book, pamphlet, magazine, printed matter, however reproduced, or sound recording which contains any matter enumerated in rsa 571-b:2, (a), or explicit and detailed verbal descriptions or narrative accounts of sexual conduct and which, taken as a whole, is harmful to minors. evidently the statute is broad and can be construed to include both print materials and internet images.

new jersey - statute applies to public libraries

conclusion: a public library and its employees can be held liable under the new jersey statute, n.j. stat. SS 2c:34-3(b) (2001), regarding promoting obscene material to minors, because the statute contains neither a public library exemption, nor a defense which a public library could invoke. moreover, the statute applies to the non-commercial promotion of print materials and internet images that are obscene to minors.

analysis
1) a public library and its employees can be held liable under the statute, since statute contains no exemption or defense that a public library could invoke, and since statute applies to non-commercial promotion of materials that are obscene to minors
a public library and its employees can be prosecuted under n.j. stat.SS 2c:34-3(b), regarding the promotion of obscene materials to minors, because the statute contains neither a public library exemption, nor a defense that a public library could invoke. moreover, the statute applies to the non-commercial dissemination of obscene materials to minors. in accordance with n.j. stat.SS 2c:34-3(b)(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) statute applies to promotion of print materials & internet images that are obscene to minors

in new jersey, a public library and its employees can be held liable for the promotion of print materials and internet images that are obscene to minors. obscene material as defined in n.j. stat.SS 2c:34-3(a)(1), 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 impart to concentrate prurient interest on the area or activity. clearly, the definition of obscene materials is broad and the statute can be construed to encompass both print materials and internet images.

new mexico - employees of public libraries potentially liable under statute, regarding print material / public libraries and their employees not liable regarding internet images

conclusion: employees of public libraries, under certain circumstances, could be prosecuted in new mexico under n.m. stat. ann. SS 30-37-2 (2001), regarding

dissemination of print materials that are harmful to minors. although in accordance with n.m. stat. ann. SS 30-37-5 (2001), an exclusion/defense exists for public libraries and those acting in their capacity as employees of a public library, arguably library employees could not invoke the defense could not be invoked under all circumstances. since n.m. stat. ann. SS 30-37-2 pertains to the non-commercial dissemination of print materials that are harmful to minors, public library employees could be held liable under the statute, where they are unable to invoke the defense. public libraries and their employees are not liable under the statute with respect to internet images.

analysis: re: employees of public libraries potentially liable under statute, regarding print materials
1) statute could apply to employee acting outside employment capacity in disseminating harmful print materials to minors
employees of a public library could be prosecuted for disseminating harmful print materials to minors. in accordance with n.m. stat. ann. SS 30-37-5(d), no person shall be guilty of violating the provisions of the statute where: such person is a bona fide school, museum or public library, or is acting in his capacity as an employee of such organization, or as a retail outlet affiliated with and serving the educational purposes of such organization.

although the defense protects a bona fide library and public library employees acting within their capacity, arguably the defense would not be available to public library employees who act beyond their capacities as employees, without authority. for example, where a public library employee knowingly permits a minor to access an obscene book, in contravention to the librarys established policy restricting such a dissemination to minors, in a prosecution under the statute, the library employee might not be able to invoke the aforementioned defense.

2) statute applies to the non-commercial dissemination of materials not suitable for minors
since n.m. stat. ann. SS 30-37-2 pertains to the non-commercial dissemination of print materials that are harmful to minors, public library employees could be held liable under the statute, where they are unable to invoke the defense. n.m. stat. ann. SS 30-37-2 states: it is unlawful for a person to knowingly sell, deliver, distribute, display for sale or provide to a minor, or knowingly to possess with intent to sell, deliver, distribute, display for sale or provide to a minor, harmful print material, which includes books and pictures.

3) statute applies to print materials

public library employees could be held liable for the dissemination to minors of print materials that are harmful to minors. n.m. stat. ann. SS 30-37-2 references books and pictures only. the statute makes it unlawful for persons to knowingly disseminate a. any picture, photograph, drawing, sculpture, motion picture film or similar visual representation or image of a person or portion of the human body, or any replica, article or device having the appearance of either male or female genitals which depicts nudity, sexual conduct, sexual excitement or sado-masochistic abuse and which is harmful to minors; or b. any book, pamphlet, magazine, printed matter however produced or sound recording which contains any matter enumerated in subsection a of this section or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse and which, taken as a whole, is harmful to minors. the statute regarding the dissemination of material that is harmful to a minor by computer and child luring is covered in n.m. stat. ann. SS 30-37-3.2.

new york public libraries and their employees potentially liable under statute

conclusion:

public libraries and their employees could, under certain circumstances, be held liable in new york under ny cls penal SS235.22, regarding the dissemination of indecent materials to minors in the first degree. a person is guilty of disseminating indecent

material to minors in the first degree when: (1.) knowing the character of the communication which, in whole or part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, he intentionally uses any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor;

analysis:

public libraries and their employees could, under certain circumstances, be held liable in new york under ny cls penal SS235.22, regarding the dissemination of indecent materials to minors in the first degree.

in accordance with ny cls penal SS235.24(1), no person shall be held to have violated such provisions solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that do not include the creation of the content of the communication. an initial reading of this section suggests public libraries are exempt form prosecution regarding the dissemination of indecent materials to minors in the first degree.

however, in accordance with SS235.24(13) no employer shall be held liable under such provisions for the actions of an employee or agent unless the employee's or agent's conduct is within the scope of his employment or agency and the employer having knowledge of such conduct, authorizes or ratifies such conduct, or recklessly disregards such conduct.

in the absence of case law in this jurisdiction interpreting the defense statute, its applicability to public libraries is subject to varying fact-specific interpretations. however, one can readily anticipate numerous factual scenarios where a librarian acting within the scope of employment and with the authorization of his/her employer library, acts in contravention to library policy, permitting individuals to engage in communication with a minor that is harmful to minors. in such situations, where the employer library ratified the employees conduct, the library and the library employee could be held liable under the statute for disseminating indecent materials to minors in the first degree.

2) public libraries could be held liable for dissemination of indecent materials via the internet.

in the new york a public library could be held liable for the dissemination to minors of harmful internet images in accordance with that ny cls penal section 235.22, regarding disseminating indecent material to minors in the first decree via computer. notably, the new york statute regarding disseminating indecent print materials to minors, as set forth in ny cls penal section 235.21, regarding the disseminating of indecent material to minors in the second degree is premised on the dissemination of materials for monetary consideration. since public libraries do not exchange their materials for monetary consideration, the statute regarding the dissemination of indecent print materials would not apply to hold libraries liable.

north carolina statute potentially applies to public libraries and their employees acting outside the scope of their legitimate duties

conclusion: public libraries and their employees, under certain circumstances, could be held liable in north carolina, for disseminating harmful materials to minors, under nc st SS 14-190.15(a). although in a prosecution under the statute, public libraries and employees have available to them an affirmative defense in accordance with nc st SS 14-190.15(c)(2), which provides a defense to a public library carrying out its legitimate function, or an employee carrying out a legitimate duty of his employment, the applicability of the defense to public libraries and their employees is fact specific, and public libraries and their employees would not, under all factual scenarios, be permitted to invoke the defense. moreover, since nc st SS 14-190.15(a) pertains to the non-commercial dissemination of print materials and internet images that are harmful to minors, a public library and its employees could be held liable under the statute.

analysis:

1) statute could apply to public libraries that are not carrying out their legitimate functions, and their employees where their dissemination is not within a legitimate duty of their employment
public libraries and their employees could be prosecuted for disseminating harmful materials to minors under nc st SS 14-190.15(a). in accordance with nc st SS 14-190.15(c)(2), it is an affirmative defense to prosecution under the statute, where, the defendant was a school, church, museum, public library, governmental agency, medical clinic, or hospital carrying out its legitimate function; or an employee or agent of such an organization acting in that capacity and carrying out a legitimate duty of his employment.

upon examination of the statutory language, it is evident that the language of the defense is vague. thus, in the absence of case law in this jurisdiction interpreting the defense statute, its applicability to public libraries and their employees is subject to varying fact-specific interpretations. arguably the defense would not be available to public libraries and employees who act without legitimate justification in disseminating harmful material to minors. for example, where a public library/ employee knowingly permits a minor to access an unfiltered internet screen, in contravention to the librarys established internet use policy requiring minors to use filtered terminals, and where the minor has no legitimate purpose for obtaining the harmful material, in a prosecution under the statute, it is possible that the public library/employee would be unable to establish that he was carrying out a legitimate function of his employment.

2) statute applies to the non-commercial dissemination of materials not suitable for minors
since nc st SS 14-190.15(a) pertains to the non-commercial dissemination of print materials and internet images that are harmful to minors, a public library and its employees could be held liable under the statute. nc st SS 14-190.15(a) states: a person commits the offense of disseminating harmful material to minors, if, with or without consideration and knowing the character or content of the material, he: (1) sells, furnishes, presents, or distributes to a minor material that is harmful to minors; or (2) allows a minor to review or peruse material that is harmful to minors.

3) statute applies to both print materials and internet images

in north carolina, a public library and its employees could be held liable for the dissemination to minors of both print materials and internet images that are harmful to minors. material, as defined in nc st SS 14-190.13(2) means pictures, drawings, video recordings, films or other visual depictions or representations but not material consisting entirely of written words. clearly, the statute is broad and can be construed to encompass both print materials and internet images.

north dakota -- statute applies to public libraries

conclusion: a public library and its employees can be prosecuted under north dakotas statute, n.d. cent. code, SS 12.1-27.1-03 (2001), regarding promoting obscenity to minors, because the statute contains neither a public library exemption, nor a defense which a public library could invoke. moreover, the statute applies to the non-commercial promotion of obscene print materials and internet images to minors.

analysis
1) a public library and its employees can be prosecuted under the north dakota
statute regarding promoting obscene materials to minors, since the statute contains no exemption or defense and applies to the non-commercial promotion of obscene materials to minors
a public library and its employees can be prosecuted under n.d. cent. code, SS 12.1-27.1-03, regarding promoting obscenity to minors, because the statute contains neither a public library exemption, nor a defense that a public library could invoke. moreover, the statute applies to the non-commercial promotion of obscene materials to minors. in accordance with n.d. cent. code, SS 12.1-27.1-03, it is a class c felony for a person, knowing of its character, to recklessly promote to a minor any material or performance which is harmful to minors, or to admit a minor to premises where a performance harmful to minors is exhibited or takes place. as set forth in n.d. cent. code, SS 12.1-27.1-02(1) promote means to produce, direct, manufacture, issue, sell, lend, mail, publish, distribute, exhibit, or advertise.

2) statute applies to promotion of obscene print materials & internet images to minors

in north dakota, a public library can be held liable for the promotion of obscene print materials and internet images. although material is not specifically defined in the statute, n.d. cent. code SS 12.1-27.1-03, makes it a crime to promote: any material or performance which is harmful to minors. in the absence of language limiting material to print matter, and since the statute states that it is an offense to promote any material, the statute can be construed to apply to both print materials and internet images.

ohio --- employees of public libraries potentially liable under statute where material not presented for educational purpose

conclusion:

employees of public libraries could, under certain circumstances, be held liable in ohio under orc ann. SS 2907.31, regarding the dissemination to minors of print materials and internet images that are harmful to minors. although in accordance with orc ann. SS 2907.31(c)(1), an affirmative defense is available where the matter was furnished or presented for a bona fide medical, scientific, educational, or other proper purpose, by a librarian, the applicability of the defense to public library employees is fact specific, and librarians would not, under all factual scenarios, be permitted to invoke the defense. . since orc ann. SS 2907.31, pertains to the non-commercial dissemination of materials that are harmful to minors, public library employees could be held liable under the statute, where they are unable to invoke the educational justification defense.

analysis:

1) statute could apply to public library employees where their dissemination of harmful materials to minors is not for any scientific, educational or other special purpose

in a prosecution for disseminating materials harmful to minors, under orc ann. SS 2907.31, librarians have available to them an affirmative defense in accordance with orc ann. SS 2907.31(c)(1), which provides: it is an affirmative defense to a charge under this section, involving material or a performance that is obscene or harmful to juveniles, that the material or performance was furnished or presented for a bona fide medical, scientific, educational, governmental, judicial, or other proper purpose, by a physician, psychologist, scientist, teacher, librarian, clergyman, prosecutor, judge, or other proper person.

upon examination of the statutory language, it is evident that the language of the defense is vague. thus, in the absence of case law in this jurisdiction interpreting the defense statute, its applicability to public libraries is subject to varying fact-specific interpretations. one can readily anticipate numerous factual scenarios where librarians enable children to access materials harmful to minors, for which the children have no

educational or other special justification for possessing. for example, where a librarian knowingly allows a 7 year old, without educational justification such as a research project, to surf the net at an unfiltered computer terminal in a public library, in contravention to library policy, and where the minor obtains materials which are harmful to minors, it appears unlikely that a librarian would be able to invoke the educational defense.

2) statute applies to the non-commercial dissemination of materials harmful to minors
since orc ann. SS 2907.31, pertains to the non-commercial dissemination of materials that are harmful to minors, public library employees could be held liable under the statute, where they are unable to invoke the aforementioned defense. orc ann. SS 2907.31, states: no person, with knowledge of its character or content shall recklessly(1) sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile any material or performance that is obscene or harmful to juveniles

3) statute applies to both print materials and internet images

in ohio, public library employees could be held liable for the dissemination to minors of both print materials and internet images that are harmful to minors. material, as defined in orc ann. SS 2907.01(j) means: any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture film, phonographic record, or tape, or other tangible thing capable of arousing interest through sight, sound, or touch. clearly, the statute is broad and can be construed to encompass both print materials and internet images that are harmful to minors.

oklahoma --statute applies to public libraries

conclusion: a public library and its employees can be prosecuted under the oklahoma statute, 21 okl. st. SS 1040.76, regarding the dissemination to minors of materials that are harmful to minors, because the statute contains neither a public library exemption, nor a defense that a public library could invoke. moreover, the statute applies to the non-commercial promotion of print materials and internet images that are pornographic for minors.

analysis
1) a public library and its employees can be prosecuted under the oklahoma statute regarding the dissemination to minors of materials harmful to minors, since the statute contains no exemption or defense and applies to the non-commercial dissemination of materials
a public library and its employees can be prosecuted under 21 okl. st. SS 1040.76, regarding the dissemination to minors of materials harmful to minors, because the statute contains neither a public library exemption, nor a defense that a public library could invoke. moreover, the statute applies to the non-commercial dissemination of pornographic materials for minors. in accordance with 21 okl. st. SS 1040.76, no person, including but not limited to any persons having custody, control or supervision of any commercial establishment, shall knowingly: 2. sell, furnish, present, distribute, allow to view, or otherwise disseminate to a minor, with or without consideration, any material which is harmful to minors.

2) statute applies to dissemination to minors of print materials & internet images that are harmful to minors

in oklahoma, a public library and its employees can be held liable for the dissemination to minors of print materials and internet images that are harmful to minors. material as defined in 21 okl. st. SS 1040.75, includes: any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture film, record, recording tape, cd-rom disk, magnetic disk memory, magnetic tape memory, or video tape evidently the statute is broad and can be construed to include both print materials and internet images.

oregonstatute does not apply to public libraries

conclusion: public libraries and their employees cannot be held liable in oregon, under ors 167.065 (1999), regarding furnishing obscene materials to minors. in accordance with ors 167.085, an affirmative defense is available to bona fide public libraries and those acting in the course of their employment as employees of a library. an examination of the language of the defense clearly indicates that public libraries and their employees cannot be held liable for furnishing obscene materials to minors.

analysis:
1) statute contains a defense for public libraries and their employees
public libraries cannot be held liable for furnishing obscene materials to minors under ors 167.065, because they can clearly invoke the affirmative defense set forth in ors 167.085(2), which states: in any prosecution under ors 167.065 to 167.080, it is an affirmative defense that the defendant was a bona fide school, museum or public library, or was acting in the course of employment as an employee of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization the cited language immunizes library employees as well, except where possibly it could be argued that the employees commission of an act in violation of the statute is committed outside the course of employment.

pennsylvania statute does not apply to public libraries

conclusion: public libraries can not be prosecuted under the pennsylvania statute, 18 pa.c.s. SS 5903(c)(2001), regarding the dissemination to minors by sale, loan or otherwise, of explicit sexual materials, including print materials, and internet images, because public libraries are exempt from prosecution in accordance with 18 pa.c.s. SS 5903(j).

analysis:

1) statute contains an exemption for public libraries

public libraries can not be prosecuted under the pennsylvania statute, 18 pa.c.s. SS 5903(c), regarding the dissemination to minors of explicit sexual materials, because public libraries are clearly within the exemption set forth in 18 pa.c.s. SS 5903(j), which states: nothing in this section shall apply to any recognized historical society or museum accorded charitable status by the federal government, any county, city, borough, township or town library, any public library, any library of any school, college or university or any archive or library under the supervision and control of the commonwealth or a political subdivision.

rhode islandstatute does not apply to public libraries

conclusion: public libraries and their employees can not be prosecuted under r.i. gen. laws SS11-31-10 (2001), regarding the sale or exhibition to minors of indecent publications, pictures or articles, because the statute is premised upon the commercial dissemination of indecent materials.

analysis:
1) statute applies to the commercial dissemination of indecent materials
r.i. gen. laws SS11-31-10, regarding the sale or exhibition of indecent publications, pictures, or articles does not apply to public libraries because the statute is premised upon the commercial dissemination of indecent material. r.i. gen. laws SS11-31-10(b), provides that there will be prosecution under the statute for: every person who willfully or knowingly engages in the business of selling, lending, giving away, showing, advertising for sale, or distributing to any person under the age of eighteen (18) years, indecent materials.

as a necessary element for conviction under this section, the state must prove that the accused engaged in the conduct covered by this section for commercial gain. state v. koohy, 105 r.i. 197, 250 a.2d 711(1969). since public libraries are not commercial entities and do not exchange their materials for commercial gain, they can not be prosecuted under the statute.

south carolina public libraries and their employees potentially liable under statute

conclusion: public libraries and employees of public libraries, under certain circumstances, could be held liable in south carolina under s.c. code ann. SS 16-15-385(a) (2000), regarding the dissemination of harmful material to minors. although in accordance with s.c. code ann. SS 16-15-385(c)(2), an affirmative defense is available where the defendant is a public library carrying out its legitimate function, or an employee of such an organization acting in that capacity and carrying out a legitimate duty of his employment, the applicability of the defense to public libraries and their employees is fact specific, and public libraries and their employees would not, under all factual scenarios, be permitted to invoke the defense. since s.c. code ann. SS 16-15-385(a) pertains to the non-commercial dissemination of materials that are harmful to minors, public libraries and their employees could be held liable under the statute, where they are unable to invoke the defense.

analysis:

1) statute could apply to a public library that is not carrying out its legitimate function, or to a library employee who is not acting carrying out a legitimate duty of his employment
a public library and library employees could be held liable in a prosecution under s.c. code ann. SS 16-15-385(a), regarding the dissemination of harmful material to minors. in accordance with SS 16-15-385(c)(2), it is an affirmative defense that the defendant was a school, church, museum, public, school, college, or university library, government agency, medical clinic, or hospital carrying out its legitimate function, or an employee or agent of such an organization acting in that capacity and carrying out a legitimate duty of his employment.

upon examination of the statutory language, it is evident that the language of the defense is vague. thus, in the absence of case law in this jurisdiction interpreting the defense statute, its applicability to public libraries and their employees is subject to varying fact-specific interpretations. however, one can readily anticipate factual scenarios where public libraries fail to carry out their legitimate functions, and their employees act outside of their legitimate duties of employment, in disseminating harmful materials to minors. for example, where a library and/or library employee knowingly permit a minor to access an unfiltered internet screen, in contravention to the librarys established internet use policy requiring minors to use filtered terminals, the library would be acting in opposition to its legitimate function by providing this material to minors, and arguably the employee would not be carrying out a legitimate duty of his employment. under such circumstances, in a prosecution under the statute, a library and the offending employee might be unable to invoke the defense.

2) statute applies to the non-commercial dissemination of materials not suitable for minors
since s.c. code ann. SS 16-15-385(a) pertains to the non-commercial dissemination of materials that are harmful to minors, a public library and its employees could be held liable under the statute, where they are unable to invoke the aforementioned defense. s.c. code ann. SS 16-15-385(a)(1) states, (a) a person commits the offense of disseminating harmful material to minors if, knowing the character or content of the material, he: (1) sells, furnishes, presents, or distributes to a minor material that is harmful to minors.

3) statute applies to both print materials and internet images

in south carolina, a public library and its employees could be held liable for the dissemination to minors of both print materials and internet images that are harmful to minors. material, as defined in s.c. code ann. SS 16-15-375 (2) means pictures, drawings, video recordings, films, or other visual depictions or representations but not material consisting entirely of written words. clearly the statute is broad and can be construed to encompass both print materials and internet images.

south dakota public libraries and their employees potentially liable under statutes

conclusion: employees of public libraries, under certain circumstances, could be held liable in south dakota, under s.d. codified laws SS 22-24-29 (2001) for disseminating material harmful to minors. although in accordance with s.d. codified laws SS 22-24-31, an affirmative defense is available to public libraries and those acting in their capacity as employees of a library, arguably library employees could not invoke the defense under all circumstances.

under s.d. codified laws SS 22-24-31 (2001), it is also an affirmative defense that the minor involved was accompanied by his parent or guardian.

additionally, in accordance with s.d. codified laws SS 22-24-56, the south dakota legislature has also established a policy that requires public libraries to restrict access to obscene materials on public access computers. in those instances where public libraries do not develop such policies to restrict access, they could be held liable for a minors access of obscene materials.

since s.d. codified laws SS 22-24-29 pertains to the non-commercial dissemination of print materials and internet images that are harmful to minors, public library employees could be held liable under the statute, where they are unable to invoke the defense.

analysis:
1) statute could apply to employee acting outside employment capacity in disseminating material harmful to minors
employees of a public library could be prosecuted for disseminating material harmful to minors under s.d. codified laws SS 22-24-29. in accordance with s .d. codified laws SS 22-24-31(4), in any prosecution for disseminating material harmful to minors, it is an affirmative defense that: the defendant was a bona fide school, college, university, museum or public library, or was acting in his capacity as an employee of such an organization or a retail outlet affiliated with and serving the educational purposes of such an organization.

although the defense protects a bona fide library and public library employees acting within their capacity, arguably the defense would not be available to public library employees who act beyond their capacities as employees, without authority. for example, where a public library employee knowingly permits a minor to access an unfiltered internet screen, in contravention to the librarys established internet use policy requiring minors to use filtered terminals, and where the minor obtains material which is harmful to him, the library employee might be unable to invoke the aforementioned defense.

2) public libraries that fail to develop and implement a local policy that establishes measures to restrict minors from computer access to obscene materials, could be held liable for damages

notably, the south dakota legislature has established a policy with requires public libraries to restrict access to obscene materials on public access computers. in accordance with s.d. codified laws SS 22-24-56, any public library that provides a public access computer shall develop and implement, by january 1, 2001, a local policy that establishes measures to restrict minors from computer access to obscene materials. furthermore, any public school that complies with SS 22-24-55 or any public library that complies with SS 22-24-56 may not be held liable for any damages that may arise from a minor gaining access to obscene materials through the use of a public access computer that is owned or controlled by the public school or public library. s.d. codified laws SS 22-24-57. thus, in those instances where public libraries do not develop policies to restrict minors from accessing obscene materials on their computers, they could be held liable for damages resulting from a minors access to materials harmful to minors.

3) statute applies to the non-commercial dissemination of materials not suitable for minors
since s.d. codified laws SS 22-24-29 pertains to the non-commercial dissemination of print materials and internet images that are harmful to minors, public library employees could be held liable under the statute, where they are unable to invoke the defense. s.d. codified laws SS 22-24-29 states: a person is guilty of disseminating material harmful to minors when he knowingly gives or makes available to a minor or promotes or possesses with intent to promote to minors, or he knowingly sells or loans to a minor for monetary consideration any material described in subdivision 22-24-27

4) statute applies to both print materials and internet images

in south dakota, a public library could be held liable for the dissemination to minors of both print materials and internet images that are harmful to minors. s.d. codified laws SS 22-24-27(6) defines "material," as anything tangible that is harmful to minors, whether derived through the medium of reading, observation, or sound. s.d. codified laws SS 22-24-27(7) "matter" or "material," any book, magazine, newspaper, or other printed or written material; or any picture, drawing, photograph, motion picture, or other pictorial representation; or any statue or other figure; or recording, transcription or mechanical, chemical, or electrical reproduction; or any other articles, equipment, machines, or materials. clearly, the broad definition of materials can be construed to encompass print materials and internet images.

tennessee -- public libraries potentially liable under statute

conclusion: a public library could be held liable in tennessee, under tenn. code ann. SS 39-17-911(2001), for disseminating harmful materials to minors. although a public library could invoke an affirmative defense to prosecution, where the dissemination of the harmful materials to a minor was made while the child was accompanied by his parent, legal guardian, or an adult with written permission of the parent or legal guardian, the defense would apply to libraries only in the most limited circumstances. one can more readily imagine scenarios where a child accesses harmful materials in a public library, while he is unaccompanied by a parent or guardian. thus, since the statute applies to the non-commercial dissemination of print materials and internet images that are harmful to minors, a public library could be held liable under the statute.

analysis
1) a public library could be held liable under the statute, for disseminating harmful materials to minors who are not accompanied by their parents
a public library could be held liable under tenn. code ann. SS 39-17-911, for disseminating harmful materials to minors. in accordance with tenn. code ann. SS 39-17-911(d), it is an affirmative defense to prosecution under this section that the minor to whom the material or show was made available or exhibited was, at the time, accompanied by the person's parent or legal guardian, or by an adult with the written permission of the parent or legal guardian. one can readily anticipate numerous factual scenarios where children obtain harmful materials in a library, unaccompanied by their parents. under such circumstances, libraries would not be able to invoke the defense and could be held liable under the statute.

2) statute applies to the non-commercial dissemination of harmful materials to minors

since tenn. code ann. SS 39-17-911 pertains to the non-commercial dissemination of obscene materials to minors, public libraries could be held liable under the statute, where they are unable to invoke the aforementioned defense. in accordance with tenn. code ann. SS 39-17-911(a), it is unlawful for any person to knowingly sell or loan for monetary consideration or otherwise exhibit or make available to a minor, material that is harmful to minors.

3) statute applies to promotion of print materials & internet images that are harmful to minors

in tennessee, a public library can be held liable for the promotion of print materials and internet images that are harmful to minors. harmful material as referenced in tenn. code ann. SS 39-17-911(a), includes: (1) any picture, photograph, drawing, sculpture, motion picture film, video game, computer software game, or similar visual representation or image of a person or portion of the human body, which depicts nudity, sexual conduct, excess violence, or sado-masochistic abuse, and which is harmful to minors; or (2) any book, pamphlet, magazine, printed matter, however reproduced, or sound recording, which contains any matter enumerated in subdivision (a)(1), or which contains explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, excess violence, or sado-masochistic abuse, and which is harmful to minors. clearly the language of the statute is broad, and can be construed to encompass both print materials and internet images.

texas -- public libraries potentially liable under statute

conclusion: public libraries, under circumstances, could be prosecuted in texas, under tex. penal code SS 43.24(b)(2002) regarding the dissemination to minors of materials harmful to minors. public libraries have available to them two defenses that they could invoke in a prosecution under the statute. the first defense, in accordance with tex. penal code SS 43.24(c)(1) is available where the sale, distribution or exhibition of the harmful material was by a person having educational justification. the applicability of the defense to public libraries is fact specific, and public libraries would not, under all factual scenarios, be permitted to invoke the defense.

the second defense set forth in tex. penal code SS 43.24(c)(2) would apply to libraries only in those limited circumstances where libraries have disseminated harmful materials to minors who were accompanied by a consenting parent or adult. since tex. penal code SS 43.24(b) pertains to the non-commercial dissemination to minors of harmful print matter and internet images, public libraries could be held liable under the statute, where the are unable to invoke the aforementioned defenses

analysis:

1) statute could apply to public library where its dissemination of harmful materials to minors is without educational justification
a public library could be held liable in a prosecution under tex. penal code SS 43.24(a), regarding the dissemination to minors of materials harmful to minors. in accordance with tex. penal code SS 43.24(c)(1), it is a defense to prosecution where the sale, distribution, or exhibition was by a person having scientific, educational, governmental, or other similar justification

upon examination of the statutory language, it is evident that the language of the defense is vague. thus, in the absence of case law in this jurisdiction interpreting the defense statute, its applicability to public libraries is subject to varying fact-specific interpretations. one can readily anticipate numerous factual scenarios where libraries disseminate harmful materials to children, without educational justification. for example, where a 7 year old surfs the net at an unfiltered computer terminal in a public library, in contravention to library policy, and obtains materials which are not suitable for minors, and where the child is not accessing the materials for a research project, a library is without educational justification for disseminating the materials, and it appears highly unlikely that a library would be able to invoke the educational justification defense.

the second defense, as set forth in tex. penal code SS 43.24(c)(2) is available where: (2) the sale, distribution, or exhibition was to a minor who was accompanied by a consenting parent, guardian, or spouse. this defense would apply to libraries only in those limited circumstances where libraries have disseminated harmful materials to minors who were accompanied by a consenting parent or adult. it is easy to imagine numerous instances in which children might be given access to harmful materials in a library, while they are unaccompanied by their parents. in such situations, libraries would not be able to invoke the defense and could be held liable under the statute.

2) statute applies to the non-commercial dissemination of obscene materials to minors

since tex. penal code SS 43.24(b) pertains to the non-commercial dissemination to minors of obscene print matter and internet images that are harmful to minors, public libraries could be held liable under the statute where the are unable to invoke the aforementioned defenses. tex. penal code SS 43.24(b)(1) states: (b) a person commits an offense if, knowing the material is harmful: (1) and knowing the person is a minor, he sells, distributes, exhibits, possesses for sale, distribution, or exhibition to a minor harmful material.

3) statute applies to obscene print materials and internet images

in texas, a public library could be held liable for the dissemination to minors of print materials and internet images that are harmful to minors. material as defined in tex. penal code SS 43.21(a)(2) means: anything tangible that is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound, or in any other manner, but does not include an actual three dimensional obscene device. clearly the definition of material set forth in the statute is very broad and can be construed to encompass both print materials and internet images.

utah public libraries and their employees potentially liable under statute where distribution of material is not for educational purposes

conclusion: public libraries and their employees, under certain circumstances, could be held liable in utah, under utah code ann. SS 76-10-1206 (2001), regarding dealing in materials harmful to a minor. although in accordance with utah code ann. SS 76-10-1208 (2001), an affirmative defense is available to those institutions or persons having scientific, educational, governmental or other justification for possessing pornographic materials, arguably the defense could not be invoked under all circumstances, by libraries and their employees. moreover, since utah code ann. SS 76-10-1206 pertains to the non-commercial dissemination of print materials and internet images that are harmful to minors, public libraries and their employees could be held liable under the statute, where they are unable to invoke the defense.

analysis:
1) statute could apply to public libraries and their employees where their dissemination of materials harmful to minors is without educational or other special justification
libraries and their employees could be prosecuted for disseminating materials harmful to minors under utah code ann. SS 76-10-1208. in accordance with utah code ann. SS 76-10-1208, (1) it is an affirmative defense to prosecution under this part that the distribution of pornographic material was restricted to institutions or persons having scientific, educational, governmental, or other similar justification for possessing pornographic material.

upon examination of the statutory language, it is evident that the language of the defense is vague. thus, in the absence of case law in this jurisdiction interpreting the defense statute, its applicability to public libraries is subject to varying fact-specific interpretations. one can readily anticipate numerous factual scenarios where public libraries and their employees distribute to children materials that are harmful to minors, and for which the minors have no educational or other special justification for possessing. for example, where a 7 year old surfs the net at an unfiltered computer terminal in a public library, in contravention to library policy, and obtains materials that are not suitable for minors, without educational justification such as a research project, it appears highly unlikely that a public library and its employees would be able to invoke the educational justification defense.

notably in utah, the state legislature has implemented an internet and online access policy, as set forth in utah code ann SS 9-7-215 which provides: no state funds shall be provided to any public library that offers use of the internet or an online service to the public unless the library adopts and enforces a policy to restrict access by minors to internet or online sites that contain obscene material.

2) statute applies to the non-commercial dissemination of materials not suitable for minors

since utah code ann. SS SS76-10-1206 pertains to the non-commercial dealing of material harmful to minors, public libraries and their employees could be held liable under the statute, where they are unable to invoke the aforementioned defense. utah code ann. SS 76-10-1206 states: (1) a person is guilty of dealing in material harmful to minors when, knowing that a person is a minor, or having failed to exercise reasonable care in ascertaining the proper age of a minor, he: (a) intentionally distributes or offers to distribute, exhibits or offers to exhibit to a minor any material harmful to minors;
(b) intentionally produces, presents, or directs any performance before a minor, that is harmful to minors; or (c) intentionally participates in any performance before a minor, that is harmful to minors.

3) statute applies to both print materials and internet images

in utah, a public library could be held liable for the dissemination to minors of both print materials and internet images that are harmful to minors. utah code ann. SS 76-10-1201(6) defines material as: anything printed or written or any picture, drawing, photograph, motion picture, or pictorial representation, or any statue or other figure, or any recording or transcription, or any mechanical, chemical, or electrical reproduction, or anything which is or may be used as a means of communication. clearly, the broad definition of materials can be construed to encompass print materials and internet images.

vermont employees of public libraries potentially liable under statue

conclusion: employees of public libraries, under certain circumstances, could be prosecuted in vermont, under 13 v.s.a. SS 2802 (2001), for disseminating indecent material to a minor in the presence of the minor. although in accordance with 13 v.s.a. SS 2805, a defense is available to public libraries and those acting within their capacities as employees of a public library, arguably library employees could not invoke the defense under all circumstances. since 13 v.s.a. SS 2802 pertains to the non-commercial dissemination to minors of indecent print materials and internet images, public library employees could be prosecuted under the statute, where they are unable to invoke the defense.

analysis:
1) statute could apply to prosecute an employee acting outside his capacity
employees of a public library could be prosecuted for disseminating indecent material to minors under 13 v.s.a. SS 2802. in accordance with 13 v.s.a. SS 2805(b)(3), it shall be an affirmative defense, that the defendant was a bona fide school, museum or public library, or was a person acting in the course of his employment as an employee or official of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization.

although the aforementioned defense protects a bona fide library and public library employees acting within their capacity, arguably the defense would not be available to public library employees who act beyond their capacities as employees in their disseminating of indecent material to minors. for example, where a public library employee knowingly permits a minor to access an unfiltered internet screen in contravention to the librarys established internet use policy which requires minors to use filtered terminals, whereby the minor obtains indecent internet materials, in a prosecution under the statute, the library employee might not be able to invoke the aforementioned defense.

2) statute applies to the non-commercial dissemination of indecent materials to minors
since 13 v.s.a. SS 2802 pertains to the non-commercial dissemination to minors of indecent print materials and internet images, public library employees could be prosecuted under the statute, where they are unable to invoke the defense. 13 v.s.a. SS 2802 (a) states: no person may, with knowledge of its character and content, sell, lend, distribute or give away to a minor indecent materials to minors.

3) statute applies to both print materials and internet images

in vermont, a public library employee could be held liable for the dissemination to minors of both print materials and internet images that are harmful to minors. indecent material as referenced in 13 v.s.a. SS 2802 (a), includes: (1) any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image, including any such representation or image which is stored electronically, of a person or portion of the human body which depicts nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors; or (2) any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in

subdivision (1) of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse and which, taken as a whole, is harmful to minors. clearly, the broad definition of materials can be construed to encompass both internet images and print materials.

virginia statute does not apply to public libraries

conclusion: public libraries and their employees can not be prosecuted under va st SS 18.2-391, regarding the dissemination for commercial purpose of material that is harmful to juveniles, because the statute is premised upon the commercial dissemination of harmful materials.

analysis:
1) statute applies to the commercial dissemination of harmful materials to minors
va st SS 18.2-391, regarding the dissemination of material that is harmful to minors does not apply to public libraries because the statute is premised upon the commercial dissemination of indecent material. va st SS 18.2-391(a) provides: it shall be unlawful for any person knowingly to sell, rent or loan to a juvenile, or to knowingly display for a commercial purpose in a manner whereby juveniles may examine and peruse, material which is harmful to juveniles. since public libraries are not commercial entities and do not sell, rent, loan or display their materials for commercial purpose, they can not be prosecuted under the statute.

washington statute does not apply to public libraries

conclusion: public libraries can not be prosecuted under washingtons statute, rev. code wash. (arcw) SS 9.68.060 (3)(d) (2001), regarding the dissemination of erotic material to a minor, because public libraries are exempt from prosecution in accordance with rev. code wash. (arcw) SS 9.68.100.

analysis:

1) statute contains an exemption for public libraries

public libraries can not be prosecuted in washington, under rev. code wash. (arcw) SS 9.68.060 (3)(d) (2001), regarding the dissemination of erotic material to a minor, because public libraries are clearly within the exemption set forth in rev. code wash. (arcw)

SS 9.68.100 which states: nothing in rcw 9.68.050 through 9.68.120 shall apply to the circulation of any such material by any recognized historical society or museum, the state law library, any county law library, the state library, the public library, any library of any college or university, or to any archive or library under the supervision and control of the state, county, municipality, or other political subdivision.

west virginia public libraries potentially liable under statute

conclusion: public libraries, under circumstances, could be prosecuted in west virginia, under w. va. code SS 61-8a-2 (2001), regarding the distribution and display to minors of obscene matter. two exemptions could potentially apply to exempt public libraries from criminal prosecution. the first exemption, in accordance with SS 61-8a-3(b), would exempt public libraries with regard to their display or distribution of any obscene matter to minors, only in those situations when the minor was accompanied by his parent. clearly, a library could invoke the exemption only in limited situations, and could be prosecuted for distributing obscene matter to minors, where the child was unaccompanied by his parent.

the second exemption set forth in w. va. code SS 61-8a-3(e) would apply to exempt libraries only in limited circumstances with regard to the distribution of obscene internet materials to minors. under the exemption, a library could invoke the exemption with regard to internet matters, only where they have taken proper procedures to prevent access to the matter by minors. where such precautions have not been taken, they could be prosecuted under the statute. since w. va. code SS 61-8a-2 pertains to the non-commercial dissemination of obscene print matter and internet images to minors, public libraries could be held liable under the statute, where the are unable to invoke the defense

analysis
1) public libraries are liable under the statute, where they disseminate obscene matter to minors who are not accompanied by their parents, and where they have failed to take proper procedures to prevent access to minors of obscene internet matter

public libraries could be held liable for disseminating obscene matter to minors, under

w. va. code SS 61-8a-2. in accordance with the exemption set forth in w. va. code SS 61-8a-3(b), the criminal provisions of this article do not apply to: a public library, or museum, which is displaying or distributing any obscene matter to a minor only when the minor was accompanied by his or her parent. one can readily anticipate numerous factual scenarios where children could access obscene matter in a library, and do so, unaccompanied by their parents. in such a situation, a library would not be able to invoke the exemption and could be prosecuted under the statute.

the second exemption set forth in w. va. code SS 61-8a-3(e) would exempt libraries, with regard to their distribution of obscene internet materials to minors, only in limited circumstances. under w. va. code SS 61-8a-3(e), the criminal provisions of this article do not apply to: a person who routinely distributes matter by the use of telephone computer network or the internet and who distributes such matter to any minor under the age of eighteen years after the person has taken reasonable measures to prevent access by minors to the obscene matter. where a public library has not taken proper precautions and measures to prevent access to minors of obscene matter through the internet, for example, by the use of terminal filters, a library would not be able to invoke the exemption, and could be prosecuted under the statute.

2) statute applies to the non-commercial dissemination of obscene materials to minors

since w. va. code SS 61-8a-2 pertains to the non-commercial dissemination of obscene matter to minors, public libraries could be held liable under the statute, where they are unable to invoke the aforementioned defenses. w. va. code SS 61-8a-2 states: any adult, with knowledge of the character of the matter, who knowingly and intentionally distributes, offers to distribute, or displays to a minor any obscene matter, is guilty of a felony under the section.

3) statute applies to obscene print materials and internet images

in west virginia, a public library could be held liable for the dissemination to minors of obscene print materials and internet images. material as defined in w. va. code SS 61-8a-1, matter means: any visual, audio, or physical item, article, production, transmission, publication, exhibition, or live performance, or reproduction thereof, including any two or three dimensional visual or written material, film, picture, drawing, video, graphic, or computer generated or reproduced image; or any book, magazine, newspaper or other visual or written material; or any motion picture or other pictorial

representation; or any statue or other figure; or any recording, transcription, or mechanical, chemical, or electrical reproduction; or any other articles, video laser disc, computer hardware and software, or computer generated images or message recording, transcription, or object, or any public or commercial live exhibition performed for consideration or before an audience of one or more. clearly by the plain language of the statute, the statute applies to both print materials and internet images.

wisconsin statute does not apply to public libraries

conclusion: public libraries and their employees cannot be prosecuted under the wisconsin statute, wis. stat. SS 948.11 (2000), regarding exposing a child to harmful material, because public libraries and their employees are exempt from prosecution in accordance with wis. stat. SS 948.11(4).

analysis:

1) statute contains an exemption for public libraries and their employees

public libraries cannot be prosecuted under the wisconsin statute, wis. stat. SS 948.11, regarding the dissemination to minors of explicit sexual materials, because public libraries are clearly within the exemption set forth in wis. stat. SS 948.11(4)(b) which states that no person who is an employee, a member of the board of directors or a trustee of any of the following is liable to prosecution for violation of this section for acts or omissions while in his or her capacity as an employee, a member of the board of directors or a trustee: 5. a library that receives funding from any unit of government. the exemption from prosecution of libraries, educational institutions and their employees and directors does not violate equal protection rights. state v. thiel, 183 wis. 2d 505, 515 n.w.2d 847 (1994).

wyoming statute does not apply to public libraries or their employees

conclusion: public libraries and their employees cannot be prosecuted under the wyoming statute, wyo. stat. SS 6-4-302 (2001), regarding promoting obscenity to minors, because public libraries and their employees are exempt from prosecution in accordance with wyo. stat. SS 6-4-302(c)(ii).

analysis:

1) statute contains an exemption for public libraries and their employees

neither public libraries nor their employees can be prosecuted under the wyoming statute, wyo. stat. SS 6-4-302, regarding promoting obscenity to minors, because public libraries and their employees are clearly within the exemption set forth in wyo. stat. SS 6-4-302(c)(ii), which states: (c) this section shall not apply to any person who may produce, reproduce, possess or disseminate obscene material: (ii) in the course of bona fide school, college, university, museum or public library activities or in the course of employment of such an organization.

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[1] in accordance with miss. code ann. SS97-5-27(2), any material is sexually oriented if the material contains representations or description, actual or simulated, of masturbation, sodomy, excretory functions, lewd exhibition of the genitals or female breasts, sadomasochistic abuse (for the purpose of sexual stimulation of gratification), homosexuality, lesbianism, bestiality, sexual intercourse, or physical contact with a persons clothed or unclothed genitals, public area, buttocks, or the breast or breasts of a female for the purpose of sexual stimulation, gratification or perversion.