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THIS IS NOT LEGAL ADVICE
Some groups and individuals have been challenging the appropriateness of various books in libraries throughout the state, sometimes arguing that libraries are providing “obscene” material or material that is “harmful to minors.” There are laws in Idaho code that define these terms and that make it a crime to disseminate material that is “obscene” or “harmful” to minors.
Idaho Code Section 18-1513 provides the relevant law on disseminating obscene materials to minors.
OBSCENE MATERIALS — DISSEMINATION TO MINORS — POLICY. It is hereby declared to be the policy of the legislature to restrain the distribution, promotion, or dissemination of obscene material, or of material harmful to minors, or the performance of obscene performances, or performances harmful to minors. It is found that such materials and performances are a contributing factor to crime, to juvenile crime, and also a basic factor in impairing the ethical and moral development of our youth.
On its own, this policy does not clearly explain the types of materials that are restricted. However, this does not mean that this policy is left to anyone’s personal interpretation. Idaho Code provides definitions to this policy in Section 18-1514 and Section 18-4101.
Harmful To Minors
Section 18-1514 provides a two part definition of what is considered “harmful to minors.” If either part of the definition is met then the material is considered harmful to minors:
The material or performance or description or representation
appeals to the prurient interest of minors as judged by the average person, applying contemporary community standards; and
depicts or describes representations or descriptions of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse which are patently offensive to prevailing standards in the adult community with respect to what is suitable material for minors, which includes but is not limited to patently offensive representations or descriptions of:
Intimate sex acts, normal or perverted, actual or simulated; or
Masturbation, excretory functions or lewd exhibition of the genitals or genital area.
Nothing herein contained is intended to include or proscribe any matter which, when considered as a whole, and in context in which it is used, possesses serious literary, artistic, political or scientific value for minors, according to prevailing standards in the adult community, with respect to what is suitable for minors.
The material, which, as a whole, has the dominant effect of substantially arousing sexual desires in persons under the age of eighteen (18) years.
Obscene Material
Section 18-4101 defines “obscene material” as any matter:
Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; and
Which depicts or describes patently offensive representations or descriptions of:
Ultimate sexual acts, normal or perverted, actual or simulated; or
Masturbation, excretory functions, or lewd exhibition of the genitals or genital area.
Nothing herein contained is intended to include or proscribe any matter which, when considered as a whole, and in the context in which it is used, possesses serious literary, artistic, political or scientific value.
Affirmative Defense
Idaho Code Section 18-1402 provides an affirmative defense, which means that someone wouldn’t be found guilty of disseminating obscene material to minors if doing so was:
(B) within the scope of employment of bona fide school, college, university, museum or public library activities or within the scope of employment of such an organization or a retail outlet affiliated with and serving the educational purposes of such an organization.
Miller v. California (1973)
Much of the language included in both Section 18-1514 and Section 18-4101 mirrors language in the case Miller v. California (1973). In this case the Supreme Court of the United States created an obscenity test for determining whether speech or expression is constitutionally protected, which is commonly referred to as the Miller test. (source)
According to the Miller test, for material to be ruled obscene it must meet all three of these conditions:
Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Understanding Terms
Prurient interest is defined as “an obsessive interest in immoral and lascivious matters” or “an excessive or unnatural interest in sex.” Section 18-4101 goes on to define prurient interest as a “shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters.”
Patently offensive refers to material that is “openly, plainly, or clearly visible as offensive to the viewing public.”
As a whole means the entire work must be considered when determining if something is “harmful to minors” or “obscene,” not just a section, paragraph, or page. When a single page or scene in a book is highlighted as an example that a book is obscene, that page or scene must be considered in the context of the whole work.
Average person refers to an average person in the community. If challenges are coming from one or two people, or a small but loud group in your community, those people do not represent the average person in the community. It can help to look at polls and surveys to see what the average person believes.
Contemporary community standards refer to the current standards of a community. Miller held that the definition of obscene should be left to local community standards, because tastes and sensitivities can be different in different places and also change over time.
Not every state applies local community standards, some states including Idaho are required to follow national standards. See United States v. Kilbride, 584 F.3d 1240 (9th Cir. 2009).
In Idaho, the “contemporary community standards” language for “obscene” and “harmful to minors” requires national standards rather than state or local standards to be considered. If a small conservative community in Idaho wants to create a broader definition of obscene or harmful to minors, it would fail. Contemporary community standards in Idaho must be applied using national standards.
TL;DR
In conclusion, if the material as a whole does not appeal to the prurient interest of minors, as a whole is not patently offensive, and as a whole does not have the dominant effect of substantially arousing sexual desire in minors then it would not be considered “harmful to minors.” If it contains some depictions of nudity or sex but still possesses serious literary, artistic or scientific value for minors then it would not be considered “harmful to minors.”
Similarly, if the material as a whole does not appeal to the prurient interest, if it does not depict or describe patently offensive representations or descriptions, and it does possess any serious literary, artistic, political, or scientific value then it would not be considered obscene. If it contains some depictions of nudity or sex but still possesses serious literary, artistic, political, or scientific value then it would not be considered “obscene.”
The language and intent of these laws is to prevent people from providing obscene material to minors. The law is not designed to restrict access to materials that a person may personally deem to be harmful or obscene to minors. Only a parent has the authority and right to decide what their child reads.
Would it be considered “harmful to minors”?
Would Playboy Magazine be considered "harmful to minors"?
Probably.
The main intent of Playboy Magazine, as a whole, is arguably to "substantially arouse sexual desires." This magazine predominantly includes images that would most likely be considered "patently offensive," in that they are clearly explicit. Although this magazine has articles and content other than nude pictures, including some articles on politics, one could argue that it does not have serious literary, artistic, scientific, or political value.
Would Gender Queer be considered "harmful to minors"?
Probably not.
A lawsuit that sought to declare Gender Queer obscene in Virginia was dismissed in 2022 (source). At issue were seven pages in the graphic novel that depicted nudity or sex, out of a total of 240 pages. As a whole, the intent of this work is arguably not to “substantially arouse sexual desires.” When considered as a whole, this book arguably has serious literary, artistic, scientific, or political value.
Would On or Off Vol 1 by A1 be considered "harmful to minors"?
Probably.
This book contains mature themes and explicit sexual content, including situations involving dubious consent (which is sexual consent that is unknown, not established with certainty, or gained through questionable circumstances). The main intent of this work, as a whole, is arguably to “substantially arouse sexual desires.” This manga includes images that would most likely be considered “patently offensive,” in that they are clearly explicit.
Would Clan of the Cave Bear be considered "harmful to minors"?
Probably not.
The Clan of the Cave Bear is a work of speculative fiction about a young girl’s survival and resilience in an elaborately imagined authoritarian paleolithic society. It also depicts child sexual assault. As a whole, the intent of this work is arguably not to “substantially arouse sexual desires.” It could be argued that this book does not depict sexual content in a “patently offensive” way. When considered as a whole, this book arguably has serious literary, artistic, scientific, or political value.
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