Three days of tense debate ended Wednesday with lawmakers falling three votes short of advancing a bill that received national attention after a senator read an explicit rape scene on the legislative floor

LINCOLN — A legislative proposal that could allow prosecutions of K-12 school officials or librarians if they provide obscenity to minors failed to advance Wednesday in the Nebraska Legislature.

State Sen. Joni Albrecht of Thurston, through Legislative Bill 441, sought to send a message in response to objectionable material in school books nationwide, although she confirmed her bill would not have addressed those books. She argued LB 441 would close a “loophole” that she said leaves K-12 librarians and teachers immune from prosecution and able to provide obscenity to children.

“Who in their right mind would argue that criminal obscenity should be presented to our school children at school?” Albrecht said.

The current penalty for providing obscenity to minors is a Class I misdemeanor, which carries up to a $1,000 fine or one year imprisonment, or both. Multiple senators, speaking for and against the bill, said Nebraska prosecutors could already charge a teacher or librarian but said they’re unaware of any such cases.

After three days of debate, LB 441 failed 30-17 on Wednesday, falling three votes short of ending debate to allow a second vote on advancement.

‘Spicy’ Or ‘Obscene’?

During debate, opponents such as State Sen. Wendy DeBoer of Omaha said the proposal missed the mark on its intended goal.

“The things which I think folks are saying they do not want to have in the schools — that is not legally obscene,” DeBoer said. “That’s a very specific term of art.”

DeBoer said there is a gray area of books — those not obviously protected or legally obscene — that some people may find “obscenely objective” or “bawdy, ribald, spicy, suggestive, vulgar, salacious or risque.”

“If the intent is to declare more ‘spicy’ things obscene, I don’t think this bill does that,” DeBoer said.

LB 441 would remove an “affirmative defense against prosecution” for employees in K-12 schools or public libraries and galleries who are criminally charged with distributing obscenity.

Lawyers in the Legislature who opposed the measure, such as State Sens. George Dungan of Lincoln and John Cavanaugh of Omaha, said Albrecht and supporters mischaracterized LB 441 as closing an “exception” or “exemption” against prosecution when there is no “loophole.”

Cavanaugh said persecution, not prosecution, was of greater concern.

A Prosecutor Weighs In

State Sen. Carolyn Bosn of Lincoln, a former prosecutor, said a defense might stop prosecutors from filing charges if they don’t feel they can overcome the defense, but not always.

“You can’t just charge someone when you know there’s a defense that would make it not guilty if proven,” she said. “In other cases where there’s an affirmative defense and you disagree with it or you don’t think they can prove that, then you would, in that case, be within your right to proceed.”

Bosn, who supported LB 441, said lawmakers needed to remember Albrecht’s intentions, which multiple opponents and supporters said were noble: trying to protect children and address questionable content in Nebraska schools.

“I think refusing to recognize what the concerns are only exacerbates the problem,” Bosn said.

Books are designed for different age levels, Bosn noted, and there are “valid concerns on both sides,” but she stood against “vilifying” librarians, schools and teachers.

Public Safety On Books

State Sen. Danielle Conrad of Lincoln, a civil rights attorney, said Bosn was “absolutely wrong” in describing criminal law as a way to address constituent concerns. A Class I misdemeanor — which is just below a felony — includes assault, stalking and violating a sexual assault protection order, Conrad noted.

“She (Bosn) equates a book that she finds offensive as that same sort of threat to public safety,” Conrad said.

LB 441 represented a “thinly veiled attempt to ban books” and weaponize criminal law against teachers and librarians, Conrad argued. She said it was time to “send a definitive statement that we support free expression and free speech, even when we find content disagreeable.”

Cavanaugh, Conrad, DeBoer and others responded that LB 441 could lead to a “slippery slope” or “chilling effect” that decreases how many books are in classrooms or libraries.

State Sen. Mike Moser of Columbus said he was unconvinced there would be more prosecutions. He said it would be beneficial if there was more caution in what goes into libraries and the hands of children.

“Based on what I’ve heard from the testimony in the hearing, I think that’s a good thing,” Moser said.

LB 441 Hearing Transcript

Much of the debate loosely danced around the March 24, 2023, hearing for LB 441, when Nebraskans read explicit book passages they said were available to school-aged children but shouldn’t be.

State Sen. Rick Holdcroft of Bellevue, a Judiciary Committee member, said that in his 28 years in the Navy, he saw a lot of things but never anything like those passages.

“It was pure smut, and it’s available in our school libraries,” Holdcroft said Monday.

Later that evening, State Sen. Steve Halloran of Hastings read from the transcript, choosing a passage from a rape survivor’s 1999 memoir, “Lucky.” At the end of select sentences, he said “Senator Cavanaugh,” which he’s argued was to get the senator’s attention. He did not specify whether he meant John Cavanaugh or his sister, Machaela.

An investigation has been launched into whether Halloran violated the Legislature’s workplace harassment policies as some call for him to resign or be censured or expelled.

More Proposals On Deck

State Sen. Lou Ann Linehan of Elkhorn said Wednesday that she hopes there is still a path for LB 441, in some form, but complained that “no one” was willing to lend Albrecht support. Linehan criticized some opponents for pointing out legal issues while neglecting to defend the books read at the hearing.

“She is a soldier for all that is good, all that she believes in, and I share those beliefs,” Linehan said of Albrecht. “I am very disappointed in the body that we could not find a way to help her with this.”

State Sen. Lynne Walz of Fremont blasted Linehan and others for saying no one was willing to help. Walz said she talked with Albrecht multiple times and suggested the state needed to ensure that proper policies are in place to prevent the issue of obscenity from even happening.

“To say that we haven’t gotten up to talk about protecting kids or keeping kids safe is not correct,” Walz said Wednesday. “To say that no one or ‘we’ have not been part of this discussion is not telling the truth.”

State Sen. Dave Murman of Glenvil, chair of the Legislature’s Education Committee, made a plea to colleagues to consider alternative avenues:

•               Enact age-verification measures for pornographic websites (in his LB 1092).

•               Ensure strong parental review and informational measures for educational content and library checkouts (in Bellevue State Sen. Rita Sanders’ LB 71 and Murman’s LB 1399).

Walz and State Sen. Tom Brandt of Plymouth also pushed the body toward Sanders’ LB 71 and suggested that lawmakers could find a solution to address the books that raised concerns for supporters. State Sen. Jana Hughes of Seward, a former school board member, said that such policies already exist and that local remedies are the best solution.

A Moral Argument

Some lawmakers looked to frame LB 441 as a moral argument, with State Sens. John Lowe of Kearney, Brian Hardin of Gering and Loren Lippincott of Central City pointing to cultural changes involving two-parent households, sex and religion.

Hardin said people have rejected “God’s context” for sex, which he said is no longer between a married couple — one adult man and one adult woman — in the privacy of their bedroom.

“Sex has been stripped of its context,” he said Wednesday.

Lippincott said serial killer Ted Bundy’s viewing of pornography as a child had a “crystallizing effect” in his violent behavior as an adult, and Nebraska needed to act.

“We don’t need any more Ted Bundys,” Lippincott said. “We do need to protect young women.”

State Sens. Megan Hunt and Jen Day, both of Omaha, shared their stories of surving sexual assault as teenagers and said that books  such as “Lucky,” from which Halloran read aloud on the floor, could help teenagers find answers and know they’re not alone.

Hunt said the “net” being dragged to collect “obscene” materials in some states is more largely ensnaring all LGBTQ content and those with content her colleagues are sensitive to, but which are not obscene, such as two men getting married, teenagers having sex or materials providing comprehensive sex education.

“Where does the snowball stop?” Hunt said Tuesday. “More and more things become thought crimes, honestly, in the eyes of the Nebraska Legislature, and that to me is a problem.”

State Board ‘Failed At Its Leadership’

State Sen. Merv Riepe of Ralston, while questioning Albrecht, similarly posited that the State Board of Education, which often stalls 5-3 on controversial measures, was to blame for LB 441.

“My own concern or feeling is that the State Board of Education has failed at its leadership, and they choose to delegate out to make sure that the state is legally the one who will get sued,” Riepe said.

He has voiced similar criticisms about Omaha State Sen. Kathleen Kauth’s LB 575, the Sports and Spaces Act, which remains in the Education Committee.

State Sen. Justin Wayne of Omaha, chair of the Judiciary Committee, said he had an amendment that might address concerns on second-round debate yet said no one wanted to sit down and talk. He said that multiple sections of law need updates and that opponents were missing the point.

“The argument is, ‘Well, people don’t get charged today,’” Wayne said. “Then if this bill passes, why would they start charging people tomorrow? You can’t have it both ways.”

This story was published by Nebraska Examiner, an editorially independent newsroom providing a hard-hitting, daily flow of news. Read the original article: https://nebraskaexaminer.com/2024/03/20/obscenity-bill-that-could-crimin...