How Michigan Gave the Attorney General Dana Nessel New Powers In Your Local Library
Michigan Passes Laws That Limit Who is in Charge of Removal of Books And Elevates State Power
The state of Michigan just passed two laws that granted additional powers to Attorney General Dana Nessel and to directors of libraries to act as the final arbiter on what materials will be included in your library. This removes the authority from the elected library boards and even limits the number of requests that will be considered for a single “material item”. In our lame duck session, the Guardians of the Fallacy for “Our Democracy” just revoke more your rights. This will affect what your kids will potentially see and what you can do about it.
Here is the description of Michigan HEHB 6034 and HEHB 6035
“A bill to create standards and processes for the selection of materials for inclusion in or withdrawal from the collections of certain public libraries; to provide for the powers and duties of certain state and local governmental officers and entities; and to provide remedies.”
Congratulations Michigan, the state has robbed you of your ability to judge what your community can choose to reflect as its values in your public libraries. This is the same government that revoked your authority to resolve zoning issues regarding solar and wind projects.
As a reminder, Attorney General Dana Nessel is allowed to advocate her views on what should be available in schools, and that includes drag queens. In 2022 at a public conference for civil rights and in an official capacity, Dana announced her intentions.
Here she is on video. In retrospect this was a signal that others were going to make decisions for you. No, this isn’t about what they do in the privacy of their homes, this is about what they can do in public, with your kids. And about how you are powerless. Many defended this as a joke.
Break Down of New Laws
HB 6034 and HB 6035 are for public and district libraries. For our purposes we’ll use HB 6034 as their goals and provisions are nearly identical.
The purpose of the law is:
A bill to create standards and processes for the selection of materials for inclusion in or withdrawal from the collections of certain public libraries; to provide for the powers and duties of certain state and local governmental officers and entities; and to provide remedies.
The bill goes into detail defining the specific jurisdiction, materials, actors and their roles when selecting what books, videos and other items made available in a public library. The items selected are referred to as materials and we’ll adopt that usage here. The laws also require a public library to publish the standards by which materials are chosen within 90 days of the date the law is enacted.
Finally, it describes the restrictions that are in place regarding requesting that a book be considered for removal, who makes the determination and the new powers that the Attorney General has to enforce that the First Amendment and obscenity laws are maintained by forcing that a book remain in circulation.
Here are the provisions of the law, with potential issues of each provision listed directly after:
New powers are granted to the State to Control what can and can’t be removed, reducing the ability of a community to define its own standards. The Attorney General now has the ability to bring civil lawsuits against a public library that removes a book from circulation.
The Attorney General now can bring a permanent injunction to keep a book on the shelf. So two ways you can face recriminations, a civil lawsuit and an injunction. Since local district attorneys are not cited, the assumption is that this would countermand any legal activity that a county district attorney may have pursued to remove obscene material.
This law now prohibits the elected library board members to order their director to remove materials. The director has final authority. This is like having an employee who can decide for themselves not to show up to work on time. While the local library board is by law responsible to maintain the overall integrity of the building and meet the community standards, the director does not have to comply with their requests to remove material. Another issue that I see arising here is that there is potential for lawsuits should a library director be dismissed while “complying with the law”. Think of it as “I was fired for protecting the First Amendment when I kept Gender Queer: A Memoir in the Young Adult Section”.
Material can only be considered for removal once every 365 days. This means that there will be only 1 official request, and since there is no standard for recording those and retaining those, you no longer have a record at the library for all the requests to remove a book. In other words “We had 60 people make a request that Huckleberry Finn be removed” will no longer be supported by library records, as there is no criteria in the law for retaining requests.
A withdrawal request can only come from a resident of the legal service area of the library. This is actually a good aspect of the law. I, for one, don’t care what the community next to me has on it’s shelves, it’s their business to maintain what standards they want. I care about my region alone.
Requests for reconsideration or withdrawal can only be made for materials that the library owns. The trick here is that the law excludes websites and displays, and inter-loan items. So while this doesn’t prevent you from requesting their removal, the law does not say the library is obligated to accept your request for those items. So does this mean that the library can feature a display about accepting minor attracted persons (MAPs) as mentors? While this may sound extreme, read the language of the law, and it’s clear that the requests that will be considered fall into a very narrow category. The director has great latitude and only a narrow scope of items can be considered.
There are few other points I want to make here. Go back and watch Dana Nessel again. Her statement that schools need drag queens because they are cool is a form of gradual approximation. Normalize the concept, get people used to it, and they will eventually be less outraged when changes are introduced. Now remember, Dana is saying here that schools should have drag queens at a state sponsored event for civil rights. This is not a political rally or a political action group for LGBTQ+ activism, this was at a state sponsored event. Dana is expressing what she thinks the state should sanction, and now the bill empowers her to make that happen. However you, as a citizen of your community, have just been severely limited. If a book is in an inappropriate location and kids are exposed to the material, only 1 request to withdraw that book will be considered every 365 days. It’s in the law.
Another important aspect regarding this law is that it specifically names who can bring an injunction. Note that the country district attorney and local county prosecutors are excluded. Does this mean that a county DA no longer can use an injunction to enforce the removal of inappropriate material? In March of 2023 Lapeer County Prosecutor John Miller announced he would file criminal charges against District Library Director Amy Churchill for violating Michigan Penal Code 750.145a, which prohibits enticing a child to commit an immoral act. Churchill refused to remove the book Gender Queer: A Memoir from the young adult section. The book has graphic illustrations of sex acts. This begs the question: will the Attorney General’s injunction take precedence over a county prosecutor’s charge?
Here is part of the interviews from the BridgeMI article regarding this incident:
Churchill told Bridge that the library purchased a copy of “Gender Queer” in the fall of 2022 at the request of a patron. Soon afterward, some residents began objecting to the book.
One resident checked the book out and took it to the police, Churchill said. The police returned the book to the library.
Miller said he became involved when several county commissioners approached him with copies of books that had been checked out from the Lapeer library.
He said he dismissed concerns about two of the books – one with LGBTQ themes but no illustrations, and a second that had to do with race relations.
The third was “Gender Queer,” with illustrations that Miller said shocked him, “and that takes a lot for a prosecutor,” he said. “I’m an attorney, I’ve studied the constitution, I’ve passed the bar exam. My job is to take a position that protects our innocent and our youth. And if this isn’t child sexual abusive material, … it borders on it.”
Miller said the book’s target audience is teenagers, and that, to him, the drawings of sex acts appeared to involve “prepubescent boys.”
A patron requested this book for the library. If that patron wanted the book, it’s available on Amazon, so it’s entirely unnecessary to make the book available in a public venue for kids. To make the claim that the First Amendment is violated is ridiculous, the book can be found online, as well as other accounts for nonbinary sexual coming of age stories. If a parent wants their 13 year old child to be exposed to that, while tragic and abhorrent, that is that parent’s business. But to request that a library have that book is beyond ridiculous. And so is the library director’s insistence that it be in view in the young adult section. That is the same as Dana Nessel making the decision that schools should have drag queens. Would we want a “meet a porn star” reading hour for 13 year old heterosexuals? Absolutely not. Displaying that material publicly is different from keeping the material available only for request by a parent. And again, if a parent is so consumed that their child be exposed to that type of material, then it’s on Amazon. Imposing it on other children is a violation of those families’ rights. But as Dana said, drag queens are cool, so you can imagine the level of sympathy that you will receive from her.
Here is the narrow scope of what can be requested for removal:
A reason or basis for a request for reconsideration cannot be made based on the religion, race, color, national origin, age, sex, sexual orientation, gender identity or expression, height, weight, familial status, or marital status of the author or because the subject matter, content, or viewpoint of the material involves religion, race, color, national origin, age, sex, sexual orientation, gender identity or expression, height, weight, familial status, or marital status.
So no request to remove material regarding gender or sexual orientation can be made. That is different from “we will take your request under advisement”. And whether the book can be displayed is up to the director.
There is one more limiting factor:
A public library shall not grant a request for reconsideration based on the subject matter, content, or viewpoint of material, unless the material has been adjudicated to be obscene or otherwise unprotected by the First Amendment of the Constitution of the United States or by section 5 of article I of the state constitution of 1963, as determined by a court of competent jurisdiction over the community in which the public library serves.
Obscenity is not protected under the First Amendment. According to Cornell’s Legal Information Institute:
are concerned with prohibiting lewd, or extremely offensive words or pictures in public. All fifty states have individual laws controlling obscene material.
Courts use a three part evaluation called the Miller test from the 1973 case Miller vs California. Those steps are:
Whether the average person sees the material as having/encouraging excessive sexual interest based on community standards.
Whether the material depicts or describes sexual conduct in a clearly offensive way as defined by the applicable state law, and
Whether the work, when considered in its entirety, “lacks serious literary, artistic, political, or scientific value.”
I can’t offer legal advice, but clearly community standards were violated by the District Library. But Amy Churchill will tell you that removing the book violates the First Amendment, so her judgement as the final arbiter overrides the community if we are to strictly follow the new Michigan law, and her decision would seem to trump the County prosecutor’s. You have a non elected official deciding for the community, who now need to go to court for further evaluation. AG Dana Nessel, very vocal on LGBTQ+ issues, would certainly bring an injunction should the district library fire the director and remove the book. Would the community have the resources to go to court to fight the attorney general?
Finally, the law states that only a resident can request that a book be removed after they have certified that they have read or viewed the offensive material in its entirety. What about the person who can request that the library acquire that book. Libraries allow non-residents to join for a fee. Why is there no restriction for requesting the material? That seems to be a loophole that could be exploited. Why someone would think it healthy for a 12 or 13 year old to walk up to a shelf and see this type of material is beyond me. Why a policy of keeping such a book from view and only allowing parental requests for that book erodes the First Amendment escapes me as well.
What we have with this law in interference is from afar. A community should be able to decide what the standards are for children in their public library. A book with graphic depiction of sex acts does not belong out in the open on a shelf, and restricting a community with draconian laws that eager bureaucrats and activists like Dana Nessel and Amy Churchill is a formula for tyranny. It is certainly repressive. By the definition of obscenity, Gender Queer: A Memoir is arguably something that should involve parental consent. This law, and the powers that it grants Dana Nessel, destroy that consent. And it is paid for by the parents whose rights are trampled.
