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Unofficial Opinion 95-24

Unofficial Opinion 95-24

October 13, 1995
To: 

Senator
District 48

Re: 

The General Assembly of Georgia may, within constitutional limitations, enact legislation which requires the public libraries of this state to distinguish between materials which are "harmful to minors" and other materials in order to prevent the exposure of such materials to children.

You have requested my opinion on whether it is within the constitutional power of the General Assembly to require, as a matter of legislation and public policy, that the public libraries of this state distinguish between adult materials and those materials considered suitable for children so as to accommodate the legitimate concerns of Georgia parents. You have informed me that Georgia public libraries have adopted the American Library Association's (ALA) "Library Bill of Rights." One of the tenets of the ALA Bill of Rights is that "a person's right to use a library should not be denied or abridged because of origin, age, background or views." This tenet has been construed by some to mean that local or regional library boards may not make distinctions between material which is suitable for minors and that which is not. In this regard, you have asked whether the ALA's "Library Bill of Rights" has the force and effect of law in Georgia. Finally, you have also asked whether it is appropriate to require public librarians in Georgia to be graduates of schools accredited by the American Library Association.

As stated by the court in American Booksellers Ass'n v. Webb, 643 F. Supp. 1546, 1547 (N.D. Ga. 1986) and quoted at American Booksellers v. Webb, 919 F.2d 1493, 1495 (11th Cir. 1990), your question "presents a conflict between one of society's most cherished rights - freedom of expression - and one of government's most profound obligations - the protection of minors." This statement was made in the context of a constitutional challenge to Georgia's "Harmful to Minors" statute, O.C.G.A. § 16-12-102 et seq., and the court's discussion of the dichotomy which is inherent in balancing the constitutional rights of access to written materials (or other media) against a legitimate government obligation to protect children. The United States Supreme Court has recognized the scope of this obligation and held that:

there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. Ginsberg v. New York, 390 U.S. 629, 639-640 (1968); New York v. Ferber, 458 U.S. 747, 756-757 (1982). The Government may serve this legitimate interest, but to withstand constitutional scrutiny, "it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms." It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends.

Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) (citations omitted).

Obviously, materials which are obscene as defined by O.C.G.A. § 16-12-80 enjoy no privilege whatsoever under the First Amendment. Georgia has followed the pattern laid out by the United States Supreme Court in Miller v. California, 413 U.S. 15 (1973) in defining what material is obscene in this state. Such material is obscene where:

(1) To the average person, applying contemporary community standards, taken as a whole, it predominantly appeals to the prurient interest, that is, a shameful or morbid interest in nudity, sex, or excretion;

(2) The material taken as a whole lacks serious literary, artistic, political, or scientific value; and

(3) The material depicts or describes, in a patently offensive way, sexual conduct specifically defined in subparagraphs (A) through (E) of this paragraph:

(A) Acts of sexual intercourse, heterosexual or homosexual, normal or perverted, actual or simulated;

(B) Acts of masturbation;

(C) Acts involving excretory functions or lewd exhibition of the genitals;

(D) Acts of bestiality or the fondling of sex organs of animals; or

(E) Sexual acts of flagellation, torture, or other violence indicating a sadomasochistic sexual relationship.

O.C.G.A. § 16-12-80(b).

Of course, the General Assembly, by virtue of this statute, has already prohibited any distribution, publication or exhibition of obscene material, whether for consumption by adults or minors.

In 1968, the United States Supreme Court recognized another category of materials which, while not obscene as to adults, are nonetheless "harmful to minors." Ginsberg v. New York, 390 U.S. 629 (1968). Georgia enacted a "harmful to minors" statute in 1984 and based its definition on the Ginsberg decision. Official Code of Georgia Annotated § 16-12-102 provides in part that:

(1) "Harmful to minors" means that quality of description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it:

(A) Taken as a whole, predominately appeals to the prurient, shameful, or morbid interest of minors;

(B) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

(C) Is, when taken as a whole, lacking in serious literary, artistic, political, or scientific value for minors.

In American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990), the court upheld Georgia's prohibition on the dissemination or exhibition of materials harmful to them and specifically found that the statute's definition was not "legislative overkill," but rather a "narrowly crafted" adaptation of a United States Supreme Court direction. It is my opinion that the definition utilized by the General Assembly in O.C.G.A. § 16-12-102(1) must be considered the benchmark for any further legislative initiatives with respect to materials available to youngsters in public libraries. In other words, materials which are not constitutionally, and under our present statutory scheme, "harmful to minors" are properly beyond the purview of further restrictive legislation limiting access. There are several reasons for this conclusion.

From a constitutional law standpoint, materials can presently be divided into three different categories: (1) obscene materials; (2) harmful to minors materials; and (3) all other materials. If the legislature were to attempt to further define and segregate materials which might be offensive to some parents, but which are not obscene or "harmful to minors," a number of serious constitutional problems arise. First, formulating a definition for such materials which meets constitutional requirements is extremely problematic. For example, in American Booksellers Ass'n v. McAuliffe, 533 F. Supp. 50 (N.D. Ga. 1981) the court invalidated on overbreadth grounds a Georgia statute banning the distribution of, among other things, representations of "nude or partially denuded figures posed or presented in a manner to provoke or arouse lust or passion or to exploit sex." The court found the language attempted to regulate material protected under the First Amendment even as to minors and was therefore overbroad. Id. at 52-53. The definition of "harmful to minors" material does not suffer from this infirmity. American Booksellers v. Webb, 919 F.2d 1493.

Secondly, as indicated in the McAuliffe and Webb cases, materials which are not "harmful to minors" in a constitutional sense are protected and any restriction must be supported by a compelling state interest and must be narrowly drawn to meet that interest. See, e.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). In a constitutional sense, the limits of legislative discretion in this area have been drawn in Ginsberg and Georgia's harmful to minors statute. The compelling state interest of protecting children is undeniable. A narrow and well defined restriction beyond that which has already been identified in the definition of "harmful to minors" material has not been identified outside the broadcast media (e.g., Action for Children's Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991), and there is no indication in the law that any further legislative restrictions on access would pass constitutional muster.

Assuming that "harmful to minors" criteria is the benchmark, as I believe we must, the General Assembly may still legislate to require public libraries to take precautions to protect minors from exposure to these materials. In O.C.G.A. § 16-12-104 there exists a "library exception" to the criminal penalties for exhibiting harmful to minors materials to children. It is my opinion that this exception was inserted into the law to protect librarians from criminal liability where materials which might be considered harmful to minors are legitimately available for educational purposes, "in an atmosphere free of commercial pressure." American Booksellers v. Webb, 919 F.2d at 1512. The library exception was designed, in part, as a mechanism for making "harmful to minors" material available for adult consumption.

However, while the library exception exempts public and school librarians from criminal sanctions, it does not prevent them from distinguishing between adult materials and those suitable for children, and clearly does not prohibit librarians from taking steps to restrict access to "harmful to minors" material to adults only. In my opinion, legislation could be passed to require such action by libraries.

With respect to the American Library Association's "Library Bill of Rights," I have found nothing to indicate that it has the force or effect of law in this state. The law of Georgia consists of our Constitution, enactments of the General Assembly, interpretations and common law of our courts, and the rules and regulations properly promulgated by executive agencies of state government. I have found no evidence that the "Library Bill of Rights" has been adopted as a part of any of these, and therefore it is not legally binding. However, it certainly may be considered aspirational and adherence to it might even be a prerequisite to some ALA accreditation program for public library systems. In my view, the "Library Bill of Rights" can be interpreted consistently with the public's obligation to protect our children, as outlined above.

Finally, you have asked whether it is reasonable for state law to require public librarians to be graduates of an ALA accredited school. Under O.C.G.A. § 20-5-45 any person appointed as the director of a library system must hold at least a Grade 5(b) Librarian's Professional Graduate Certificate as defined by the State Board for the Certification of Librarians. Official Code of Georgia Annotated § 43-24-4 requires that librarians in public libraries serving political subdivisions of 5,000 citizens or more be certified by the Board. The Board has promulgated Rule 320-3-.01 which requires librarians to hold various degrees from library schools whose programs are accredited by the American Library Association. The General Assembly has thus delegated to the Board the authority to determine the requirements for librarian certification, and graduation from an ALA accredited school has been determined to be a requirement.

Your question is quintessentially a matter of legislative prerogative. However, in my opinion, it is reasonable that a legislative or regulatory body might conclude that graduation from an ALA accredited school may provide a higher quality education for a career as a librarian, and as such, such a requirement would be appropriate.

In summary, public libraries may be required by legislation to take appropriate action to protect minors from exposure to materials which fall within the definition of "harmful to minors." The ALA's "Library Bill of Rights" has no legal effect in this state. It is within a legislative or regulatory body's discretion to conclude that graduation from ALA accredited library schools is a proper requirement for state certification.

Prepared by:

MICHAEL E. HOBBS
Deputy Attorney General