MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Judiciary B
By: Representatives Ford (73rd), Hobgood-Wilkes, Williamson, Boyd (19th)
AN ACT TO CREATE A NEW SECTION OF LAW TO PROVIDE THAT LIBRARY COLLECTIONS, EVENTS, PRESENTATIONS AND DISPLAYS CURATED FOR THE SPECIAL NEEDS AND INTERESTS OF CHILDREN AND YOUNG TEENAGERS SHALL NOT BE ALLOWED TO INCLUDE MATERIALS CONTAINING CERTAIN INFORMATION; TO CREATE THE COMMISSION ON AGE APPROPRIATE LITERACY TO COMPILE A LIST OF OBSCENE MATERIAL AND UPDATE THE LIST ANNUALLY; TO PROVIDE THE MEMBERS OF THE COMMISSION; TO PROVIDE THAT A CITIZEN OF THIS STATE WHOSE CHILD IS AFFECTED BY A VIOLATION OF THIS ACT MAY FILE SUIT FOR DECLARATIVE AND INJUNCTIVE RELIEF, INCLUDING ALL REASONABLE ATTORNEY'S FEES AND COSTS INCURRED BY THE PARTY BRINGING THE SUIT IN THE CIRCUIT COURT WHICH SHALL HAVE JURISDICTION OVER THE LIBRARY WHERE THE VIOLATION OF THIS ACT OCCURS; TO PROVIDE THAT THE MISSISSIPPI LIBRARY COMMISSION AND THE STATE DEPARTMENT OF EDUCATION SHALL GIVE THE LIBRARY THE OPPORTUNITY TO CURE THE VIOLATION BEFORE A SUIT IS BROUGHT; TO AMEND SECTION 37-1-3, MISSISSIPPI CODE OF 1972, TO AMEND THE POWERS AND DUTIES OF THE STATE BOARD OF EDUCATION TO COMPLY WITH THE PROVISIONS OF THIS ACT; TO BRING FORWARD SECTIONS 97-29-107 AND 39-3-357, MISSISSIPPI CODE OF 1972, FOR THE PURPOSE OF POSSIBLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) Public library collections, events, presentations and displays curated for the special needs and interests of children under the age of fifteen (15) shall not include obscene written or visual materials, as determined by the Commission on Age Appropriate Literacy. A material is obscene if:
(a) To the average person, applying contemporary community standards, taken as a whole, it appeals to the prurient interest, that is, a lustful, erotic, shameful, or morbid interest in nudity, sex or excretion; and
(b) The material taken as a whole lacks serious literary, artistic, political or scientific value; and
(c) The material depicts or describes in a patently offensive way, sexual contact specifically defined in subparagraphs (i) through (v) below:
(i) Acts of sexual intercourse of any kind, normal or perverted, actual or simulated;
(ii) Acts of masturbation;
(iii) Acts involving excretory functions or lewd exhibition of the genitals;
(iv) Acts of bestiality or the fondling of sex organs of animals; or
(v) Sexual acts of flagellation, torture or other violence indicating a sadomasochistic sexual relationship.
(2) "Patently offensive" means so offensive on its face as to affront current community standards of decency.
(3) "Obscene material" as described above shall not include age-appropriate materials with diagrams about anatomy for science or content relating to classical works of art.
SECTION 2. (1) There is hereby created the Commission on Age Appropriate Literacy. The commission shall be assigned to the Office of the Secretary of State for administrative purposes only. The commission shall, after consultation with the State Board of Education and the Mississippi Library Commission as mandated in Section 3 of this act, compile a list of obscene or written materials, as outlined in Section 1 of this act. The commission shall consist of seventeen (17) members and shall be filled in the following manner:
(a) The State Superintendent of Education, or his or her designee, shall serve as the permanent chairperson of the commission, from and after this act;
(b) Four (4) members shall be appointed as representatives of any four Institutes of Higher Learning in the State of Mississippi, specifically those institutes' Department of English or Literacy. The Governor shall appoint two (2) of these members and the Speaker of the House and the Lieutenant Governor shall appoint one (1) each;
(c) Four (4) members shall be appointed who are full-time educators or administrators in Mississippi public schools. The Governor shall appoint two (2) of these members and the Speaker of the House and the Lieutenant Governor shall appoint one (1) each;
(d) Four (4) members shall be appointed who are full-time librarians in Mississippi public libraries. The Governor shall appoint two (2) of these members and the Speaker of the House and the Lieutenant Governor shall appoint one (1) each; and
(e) Four (4) members shall be appointed who are parents of children in Mississippi public schools. The Governor shall appoint two (2) of these members and the Speaker of the House and the Lieutenant Governor shall appoint one (1) each.
(2) The members of the commission shall be residents of this state and shall be appointed with due regard for broad geographic representation.
(3) The commissioners shall serve a term of four (4) years and eight (8) members of the commission shall constitute a quorum for the transaction of the business of the commission.
(4) Members of the commission may not be compensated for the performance of their duties except from nonstate funds that are specifically available for that purpose.
(5) The commission shall meet and continue to update the list of materials that violate this act and provide those updates to public libraries and public school libraries no later than July 1 of each year.
SECTION 3. The State Board of Education and the Mississippi Library Commission shall provide guidance and training to support the members of the Commission on Age Appropriate Literacy in identifying materials that violate this act.
SECTION 4. Public library collections, events, presentations and displays curated for the special needs and interests of children under the age of fifteen (15) shall not include obscene written or visual materials contained on the list of obscene materials compiled pursuant to this act.
SECTION 5. (1) A citizen of this state who believes that a material is obscene and should not be displayed in public library collections, events, presentations and displays curated for those special needs and interests of children under the age of fifteen (15) may petition the Commission on Age Appropriate Literacy to have the material added to the list of obscene materials. The commission shall hear the petition at its next regularly scheduled meeting as long as the petition is filed more than thirty (30) days before the next regularly scheduled meeting. If the petition is filed after such time, then the commission may hear the petition at the following meeting.
(2) The commission shall provide its determination as to the material in writing. If the commission determines that the material is not obscene as described in this act and should not be included on the list of obscene materials, the petitioner may appeal the decision to the Mississippi Library Commission for a final determination. If the commission determines that the material is obscene and should be excluded from collections, events, presentations and displays curated for those special needs and interests of children under the age of fifteen (15), then any person may appeal the decision to the Mississippi Library Commission for a final determination.
(3) A citizen of this state whose child is affected by a violation of this act may file suit for declarative and injunctive relief, including all reasonable attorney's fees and costs incurred by the party bringing the suit in the circuit court which shall have jurisdiction over the library where the violation of this act occurs.
(4) Before instituting suit under this section, the party adversely impacted by a violation of this act shall notify the Mississippi Library Commission and the State Department of Education in writing of the violation and include evidence of the violation. The Mississippi Library Commission and the State Department of Education shall, within thirty (30) days, investigate whether the library is in violation of this act and provide the chief administrative officer of the library notice of the findings, including a description of the materials in violation of this act. The library shall have thirty (30) days from receipt of the notice to cure the violation. If the library fails to cure the violation within that thirty-day time period, a suit under subsection (1) of this section may proceed. The findings of the Mississippi Library Commission and State Department of Education shall constitute a public record under the Mississippi Public Records Act of 1983.
(5) If the circuit court finds that a library failed to cure the violation in accordance with subsection (2) of this section, the circuit court shall issue a permanent injunction against the library, prohibiting it from including the obscene materials in its collection for those individuals aged three (3) to fifteen (15).
SECTION 6. Section 37-1-3, Mississippi Code of 1972, is amended as follows:
37-1-3. (1) The State Board of Education shall adopt rules and regulations and set standards and policies for the organization, operation, management, planning, budgeting and programs of the State Department of Education.
(a) The board is directed to identify all functions of the department that contribute to or comprise a part of the state system of educational accountability and to establish and maintain within the department the necessary organizational structure, policies and procedures for effectively coordinating such functions. Such policies and procedures shall clearly fix and delineate responsibilities for various aspects of the system and for overall coordination of the total system and its effective management.
(b) The board shall establish and maintain a system-wide plan of performance, policy and directions of public education not otherwise provided for.
(c) The board shall effectively use the personnel and resources of the department to enhance technical assistance to school districts in instruction and management therein.
(d) The board shall establish and maintain a central budget policy.
(e) The board shall establish and maintain within the State Department of Education a central management capacity under the direction of the State Superintendent of Public Education.
(f) The board, with recommendations from the superintendent, shall design and maintain a five-year plan and program for educational improvement that shall set forth objectives for system performance and development and be the basis for budget requests and legislative initiatives.
(g) The board shall, with the Mississippi Library Commission, provide guidance and training to support the members of the Commission on Age Appropriate Literacy as provided in Section 3 of this act.
(2) (a) The State Board of Education shall adopt and maintain a curriculum and a course of study to be used in the public school districts that is designed to prepare the state's children and youth to be productive, informed, creative citizens, workers and leaders, and it shall regulate all matters arising in the practical administration of the school system not otherwise provided for.
(b) Before the 1999-2000 school year, the State Board of Education shall develop personal living and finances objectives that focus on money management skills for individuals and families for appropriate, existing courses at the secondary level. The objectives must require the teaching of those skills necessary to handle personal business and finances and must include instruction in the following:
(i) Opening a bank account and assessing the quality of a bank's services;
(ii) Balancing a checkbook;
(iii) Managing debt, including retail and credit card debt;
(iv) Completing a loan application;
(v) The implications of an inheritance;
(vi) The basics of personal insurance policies;
(vii) Consumer rights and responsibilities;
(viii) Dealing with salesmen and merchants;
(ix) Computing state and federal income taxes;
(x) Local tax assessments;
(xi) Computing interest rates by various mechanisms;
(xii) Understanding simple contracts; and
(xiii) Contesting an incorrect billing statement.
(3) The State Board of Education shall have authority to expend any available federal funds, or any other funds expressly designated, to pay training, educational expenses, salary incentives and salary supplements to licensed teachers employed in local school districts or schools administered by the State Board of Education. Such incentive payments shall not be considered part of a school district's local supplement as defined in Section 37-151-5(o), nor shall the incentives be considered part of the local supplement paid to an individual teacher for the purposes of Section 37-19-7(1). MAEP funds or any other state funds shall not be used to provide such incentives unless specifically authorized by law.
(4) The State Board of Education shall through its actions seek to implement the policies set forth in Section 37-1-2.
SECTION 7. Section 97-29-107, Mississippi Code of 1972, is brought forward as follows:
97-29-107. (1) Sections 97-29-101 through 97-29-109 shall not apply when the distribution or wholesale distribution of the material, performance or device was made by:
(a) A person, corporation, company, partnership, firm, association, business, establishment or other legal entity to a person associated with an institution of higher learning, either as a member of the faculty or as a matriculated student, teaching or pursuing a course of study related to such material, performance or device;
(b) A licensed physician or a licensed psychologist to a person whose receipt of such material or device was authorized in writing by such physician or psychologist in the course of medical or psychological treatment or care;
(c) A person who while acting in his capacity as an employee is employed on a full-time or part-time basis by (i) any recognized historical society or museum accorded charitable status by the federal government; (ii) any state, county or municipal public library; or (iii) any library of any public or private school, college or university in this state; or
(d) A community television antenna services system or a cable television system operating pursuant to a written agreement not in conflict with this paragraph granted by a county, municipality or other political subdivision of this state, or by an employee of such system while acting within the scope of his employment, when the signal transmitting the material or performance originates outside of the State of Mississippi.
(2) Any exemption from prosecution claimed under the provisions of this section may be raised at a pretrial hearing by motion, and the court shall determine whether sufficient evidence exists to constitute an exemption from prosecution under the provisions of Sections 97-29-101 through 97-29-109. If the motion is sustained, the case shall be dismissed; provided, however, if the motion is not sustained then the defendant may offer into evidence at trial as an affirmative defense to conviction under Sections 97-29-101 through 97-29-109 any matter which could have been raised by the defendant in the motion to dismiss.
SECTION 8. Section 39-3-357, Mississippi Code of 1972, is brought forward as follows:
39-3-357. Each accredited public library system shall receive an annual allocation of state funds to supplement the local appropriation and other income. Library cooperatives which include accredited public library systems may receive state aid. The state aid shall be used only to support library services in accredited public library systems and in cooperatives including accredited public library systems. The amount of the minimum allocation for each public library system shall be based on specific local service levels of the public library system and as identified by accreditation category.
SECTION 9. This act shall take effect and be in force from and after July 1, 2023.