ISSUE: Do the actions of school librarians in New Jersey meet the elements of the offense of obscenity for persons under 18?
So the issue is, does 2C:34-3 apply to New Jersey school librarians and do the actions of school librarians meet the elements of the offense of obscenity for people under 18. To answer that, we look at the rule (2C:34-3) to determine the elements of the offense, then we apply that rule to the facts. After that we make a conclusion.
RULE: NJ Rev Stat § 2C:34-3 (2013) Obscenity For Persons Under 18
2C:34-3. Obscenity For Persons Under 18.
a. Definitions for purposes of this section:
(1) "Obscene material" means any description, narrative account, display, depiction of a specified anatomical area or specified sexual activity contained in, or consisting of, a picture or other representation, publication, …, which by means of posing, composition, format or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the area or activity.
(2) …
(3) "Specified anatomical area" means:
(a) Less than completely and opaquely covered human genitals, pubic region, buttock or female breasts below a point immediately above the top of the areola; or
(b) Human male genitals in a discernibly turgid state, even if covered.
(4) "Specified sexual activity" means:
(a) Human genitals in a state of sexual stimulation or arousal; or
(b) Any act of human masturbation, sexual intercourse or deviate sexual intercourse; or
(c) Fondling or other erotic touching of covered or uncovered human genitals, pubic region, buttock or female breast.
(5) "Knowingly" means:
(a) Having knowledge of the character and content of the material … described herein; …
(b) …
(6) …
(7) "Show" means cause or allow to be seen.
b. Promoting obscene material.
(1) A person who knowingly …, distributes, … to a person under 18 years of age obscene material is guilty of a crime of the third degree.
(2) A person who knowingly shows obscene material to a person under 18 years of age with the knowledge or purpose to arouse, gratify or stimulate himself or another is guilty of a crime of the third degree if the person showing the obscene material is at least four years older than the person under 18 years of age viewing the material.
c. …
d. Presumption of knowledge and age.
The requisite knowledge with regard to the character and content of the … material and of the age of the person is presumed in the case of an actor who …, distributes, … or shows obscene material to a person under 18 years of age ….
e. Defenses.
(1) It is an affirmative defense to a prosecution under subsections b. and c. which the defendant must prove by a preponderance of evidence that:
(a) The person under age 18 falsely represented in or by writing that he was age 18 or over;
(b) The person's appearance was such that an individual of ordinary prudence would believe him to be age 18 or over; and
(c) The …, distribution, …, [or] showing … was made in good faith relying upon such written representation and appearance and in the reasonable belief that he was actually age 18 or over.
(2) …
APPLICATION: Have the elements of the offense been satisfied by the actions of school librarians?
Here’s where we compare the elements of the offense to the facts. The crime is defined in 2C:34-3(b)(1): "A person who knowingly …, distributes, … to a person under 18 years of age obscene material is guilty of a crime of the third degree." The elements of the offense are 1) a person, 2) knowingly, 3) distributes, 4) to a person under 18, 5) obscene material. All elements of an offense must be met to make a finding of a crime under a criminal statute.
Element 1: A person.
A school librarian is a person.
Element 1 of 2C:34-3 has been met.
Element 2: Knowingly.
2C:34-3(a)(5) defines knowingly as having knowledge of the character and content of the material. So do school librarians have knowledge of the character and content of the material? Yes. The aforementioned "Freedom to Read Act" requires a school board to "acknowledge that a school library specialist is professionally trained to curate and develop the school library collection." If anyone has knowledge of the character and content of the material, it’s the school librarian. They are professionally trained to curate and develop the school library collection. The "Freedom to Read Act" was written by the American Library Association then shaped by New Jersey legislators for application to New Jersey students. So essentially the American Library Association is saying school librarians are professionally trained to curate and develop school library collections. As a result, it is clear school librarians are in the highest position of knowing the character and content of the material.
Furthermore, American Library Association has a site for book resumes as it copies the idea of book reviews from sites put together by moms and dads. While BookLooks gives "Let’s Talk About It" a severe rating of 4/5, see: https://booklooks.org/data/files/Book%20Looks%20Reports/L/Lets%20Talk%20About%20It.pdf, the ALA site gives it a glowing review, see: https://bookresumes.uniteagainstbookbans.org/wp-content/uploads/moen_letsTalkAboutIt_20240215-pdf.pdf. ALA is not only fully knowledgable about the book’s content, but it is actively seeking to give it a glowing review to attract more children to read it or more librarians and parents to recommend it to more children.
School librarian Martha Hickson discusses Let’s Talk About It and it is 100% obvious she fully understands the material is as obscene as the Internet can be, only accurately depicted and discussed. See at 4:22: https://www.pbs.org/video/martha-hickson-intv-1706645841/. So she knows the character and content of that material.
Element 2 of 2C:34-3 has been met.
Element 3: Distributes.
2C:34-3 does not define distribution. Merriam-Webster defines it as the act or process of distributing, that it further defines as dividing among several or many, spreading out so as to cover, giving out or delivering especially to members of a group. It is a school librarian’s job to curate and develop school library collections and thereafter distribute the collected materials to school students, faculty, and administration. Distribution is specifically the job of a school librarian. She’s not an academic conducting research and collecting works for herself. They are called media specialists for a reason. They are specialists. They acquire books then make displays with them and place them on lists and place them on library shelves precisely with the idea of distributing the books to anyone and everyone interested, and in school libraries, the primary audience is children. Indeed, everyone expects school librarians to open the world of reading to school children. They just don’t expect that obscenity as defined in 2C:34-3 is part of that world of reading.
There may have been an argument in the past that 2C:34-3 doesn’t apply to librarians because the librarians do not actively place the books into the hands of the children. They simply put the books on the shelves and it is the children themselves who select them. This is a false argument. First, it’s like saying a bar tender didn’t make children drink, he merely selected the alcoholic beverages in the bar and the children themselves selected them. A tattoo artist didn’t force a child to get a Sponge Bob tattoo, it was the child who selected that tattoo from those listed. It wasn’t the librarian who put the book in the child’s hands, the child simply selected the book off the shelf. Well the book would not have been on the shelf in the first place had the librarian not selected the book to be placed on the shelf.
And we know from S2421 that librarians are professionals at curating book collections. So how else did the child get the obscene material from the shelves but for a librarian’s actions? Did no one distribute the book to the child? Did it just appear out of thin air? Further, librarians make Banned Books Week displays to lure children into libraries to select inappropriate material. The Roxbury librarian sued the parents in part for making that very statement, but it is American Library Association itself that talks about luring kids with attractive Banned Books Week displays. The point here is 2C:34-3 involves 2C:34-3(b) that involves promoting obscene material by either knowingly (1) distributing material to a minor or (2) showing obscene material to minor. True, librarians aren’t showing material to a minor or it would be very hard to prove. But the law uses the word "or." The librarians are indeed distributing the material to the school children by virtue of their selecting the materials and placing them on library shelves to be picked up by children. That distribution is enough for this element of the offense to be met. It is not required that a librarian place a book into a children’s hand. Besides, why is S2421 seeking an exemption for librarians if they were not tacitly admitting librarians are indeed liable under 2C:34-3.
Then there is the question of why do school librarians hide the distribution of obscene material to school children. They know they are distributing it and they don’t want the parents to know. "Per the ALA, best practice is to simply not keep checkout records, so that parents can be told that you do not have access to that information. Informing parents of checkouts is a massive violation of the principles of free-inquiry that constitute the ALA's Library Bill of Rights, something your school librarian should be keen on upholding." See: https://www.weareteachers.com/struggling-with-book-bans-reddit/.
So not only is distribution occurring, but some librarians are actively seeking to hide that information from parents.
As a result, Element 3 of 2C:34-3 has been met.
Element 4: To a person under 18.
In a non collegiate, public school setting, the majority of the people to whom a school librarian distributes material are under 18. Schools are designed to meet the needs of children, the majority of whom are under 18.
Element 4 of 2C:34-3 has been met.
Element 5: Obscene material.
2C:34-3(a)(1) defines obscenity as any description, narrative account, display, depiction of a specified anatomical area or specified sexual activity contained in, or consisting of, a picture or other representation, publication, …, which by means of posing, composition, format or animated sensual details, emits sensuality with sufficient impact to concentrate prurient interest on the area or activity.
This definition of obscenity is the key to finding New Jersey school librarians in violation of 2C:34-3, not only because it is a required element of the offense, but also because it is not the usual definition of obscenity. The usual definition is the one from Miller v. California, 413 U.S. 15 (1973), the one with the three prong Miller test, and one prong requiring the work to be considered obscene "as a whole." That "as a whole" standard essentially makes obscenity prosecutions under the Miller standard unsuccessful. "As a whole" as a standard means no school books are ever obscene because "as a whole" they just aren’t. No school librarians ever buy obscenity for school libraries as defined by the Miller test. The book Let’s Talk About It, for example, is not obscenity per the Miller test. But 2C:34-3 does not have that "as a whole" standard. So, in New Jersey at least, it is possible school librarians are knowingly distributing obscene material to people under 18. Let’s Talk About It, for example, may be obscenity under 2C:34-3. To understand if it is, a deeper look at 2C:34-3 is needed.
2C:34-3(a)(1) references terms that further drill down on what is obscenity, namely, "specified anatomical areas" and "specified sexual activity."
Per 2C:34-3(a)(3) "Specified anatomical area" means: "(a) Less than completely and opaquely covered human genitals, pubic region, buttock or female breasts below a point immediately above the top of the areola; or (b) Human male genitals in a discernibly turgid state, even if covered."
Per 2C:34-3(a)(4) "Specified sexual activity" means: "(a) Human genitals in a state of sexual stimulation or arousal; or (b) Any act of human masturbation, sexual intercourse or deviate sexual intercourse; or (c) Fondling or other erotic touching of covered or uncovered human genitals, pubic region, buttock or female breast."
Let’s Talk About It does indeed contain "specified sexual activity" regarding "specified anatomical areas." Let’s Talk About It has graphics that show everything listed in both 2C:34-3(a)(3) and 2C:34-3(a)(4).
For example, one graphic shows a sort of x-ray view of a man’s penis fully inserted into the vagina of a woman with the words, "Shloop!" and "WHOA, that’s NOT safe for work." "Reproduction aside, your genitals exist to let you feel pleasure with yourself or others (no matter which genitals they may have). Sexual intimacy is a powerful way to feel good and bond with another person, whether it’s for a night or a lifetime. Ahhhh. I can’t handle any more. Our bodies are so incredible!! …Makes me wanna have some alone time with my bits. Get outta here, Suri!" On another page graphics of how a female masturbates are shown repeatedly. Accompany words say, "Things to Try! Trail your finder around and over your vulva. Flutter your fingers lightly from place to place. Tug, pull, and rub your labia. Circle your fingers around and over your clit. Give it a couple quick pats! Press and pull on the skin around your vulva to make it taut. Try slipping a finger or two inside your vagina. Later on, try adding a sex toy to your masturbation! They can bring a completely new sensation that you can’t experience with just your hands."
Another page turns to male genitalia. The largest word on the page is "FWAP!" "Things to Try! Stroke the shaft of your penis with different pressures and speeds. Try mixing up your grip or switch hands. Whack it against your palm or give it some gentle bending pressure. Tug or squeeze on your balls. If you have a foreskin, play with it! Slip a wet finger between it and the glans. Switch things up and avoid constantly masturbating with a tight hand grip, as it can make it harder to climax in the future." Try a sex toy for bonus fun. Vibes and strokers are awesome!"
Let’s Talk About It then turns to anal sex, with multiple full close up graphics, and these words: "Apply broad pressure to the outside of the entrance. Circle your butthole with your finger, pausing any time a spot feels extra good. Dip just the tip of your finger inside. Let your anus pull it in when it's ready, instead of forcing it. Dive deeper with your finger or a butt plug! Just make sure any objects you put up there have a flared base; otherwise, your hungry heinie can gobble it up and the only way to get it back out is a trip to the hospital. Make sure to wash your hands before touching any of your other body parts, especially the vulva. Or wear latex gloves and toss them…"
There’s "prurient interest" galore there. Shloop! FWAP! Sex toys for bonus fun. Dive deeper with your finger or a butt plug! That’s not sex education. No adult here was ever trained in public school how to use a butt plug for bonus fun.
See also: "Dems, Don’t Tell Us We Need to ‘Shhh!’; Our Kids’ School Libraries are Full of Guides on Sex Acts and Gender Confusion," by Karol Markowicz, The New York Post, 9 March 2023, https://nypost.com/2023/03/09/our-kids-school-libraries-are-full-of-guides-on-sex-acts-and-gender-confusion/.
Given the above, Let’s Talk About It is a book loaded with material 2C:34-3 defines as obscene. Many other books have similar content, such as Gender Queer.
Element 5 of 2C:34-3 has been met.
So all five elements of the offense have been met.
Mitigating and Aggravating Factors
At this point, all five elements of the offense proscribed by 2C:34-3 have been met. School librarians purchase and distribute obscene material in schools. They are subject to 2C:34-3, and the legislative effort to pass S2421 shows librarians know they are subject to 2C:34-3.
Let’s look at mitigating and aggravating factors.
The only mitigating factor is that we are talking about librarians. They have some of the highest good will ratings of any job. So there is a tendency to assume a librarian always acts for the good of children. That’s not a mitigating factor, but it is something that may weigh in on whether to find a librarian guilty of 2C:34-3, and it shouldn’t. Actually, they should know better, and they do, they simply want to keep children reading such material, even calling a "right to read", a "freedom to read," or "intellectual freedom." No child has the right to read illegal material in public schools simply because a school librarian claims a First Amendment right to distribute such material. The New Jersey Legislature trumps librarians. Police must enforce the law and put aside the librarian spin about kid’s rights to see themselves in the books they read in schools. Mirrors, windows, and doors are not an excuse to violate 2C:34-3.
Aggravating factors are aplenty. One school librarian, upon hearing of a book challenge, jumped over the heads of her own reporting structure and "notified her union and groups like ALA’s Office for Intellectual Freedom and the National Coalition Against Censorship (NCAC). She also reactivated a network of community supporters that she built in 2015, when Fun Home was first challenged.” See page 28: https://americanlibrariesmagazine.org/wp-content/uploads/2023/10/1123-al.pdf. She trains other librarians to do the same. "Reach out for support to the American Library Association Office for Intellectual Freedom, the National Coalition Against Censorship, the National Council of Teachers of English, EveryLibrary.org, and the Comic Book Legal Defense Fund, all of which have online forms to make it easy to report your case. Also get in touch with your local library organizations at the county and state level. For me that was the Hunterdon County Library Association, the NJ Library Association, and the NJ Association of School Librarians. And don’t forget school and community partners, including your union, your colleagues, parents, clubs, organizations, and most importantly students. People will want to help; you just need to tell them what you need. See: https://comminfo.rutgers.edu/news/standing-strong-against-censorship.
Further aggravating the situation, that school librarian has a web page on the school’s web site where that web page calls parents—in her own school—"censors" who "strike," and she guides librarians to go over the heads of their own employers and to do so secretly. See: Hickson, Martha. “Challenge of Challenges: Challenge Emergency Kit.” North Hunterdon High School Library Media Center, November 27, 2023. https://libguides.nhvweb.net/c.php?g=1035323&p=7505173. Again, this attack on parents and this guidance for librarians nationwide is on the school’s own web site.
See the librarian herself describe the "vicious" parents, her reaching out to the library community generally to pressure school boards, and especially noteworthy in the context of a 2C:34-3 conviction is her description of "Let’s Talk About It." She says, "Well my understanding of, um, the objection, although it hasn’t been formally articulated, there was a uh reading of of the book at the November board meeting, um, a reading of passages of the book I should say, those passages had to do with ah masturbation um. My understanding of the concern is that uh some observers of selected passages and pages of the book believe it is too explicit for teenagers. Um, it contains cartoon nudity, it is a book about sexual health, uh, and it does take it from the perspective of the twenty first century teenager, a twenty first century teenager who lives in an environment that is saturated with sexual content by virtual of the device that they hold in their hand. Um. And the material they access through the device that they hold in their hand is not curated, it is not high quality information, it may not even be accurate information. A book like Let’s Talk About It, on the other hand, is exactly that. Um, it’s highly praised by professional review sources, it contains accurate information about uh teenager sexual health and behavior." See at 4:22: https://www.pbs.org/video/martha-hickson-intv-1706645841/.
Notice she talks about "select passages" being read. She is referring to the "as a whole" standard of the Miller Test for obscenity that doesn’t apply to schools generally and that isn’t a part of New Jersey’s 2C:34-3. She talks about terrific professional reviews. That’s irrelevant to 2C:34-3. She talks about the book allegedly being about sexual health. That’s irrelevant to 2C:34-3 but also false, as discussed above. She talks about kids seeing inappropriate material on their cell phones anyway so they might as well get "high quality information" from books like Let’s Talk About It. That’s not only irrelevant to 2C:34-3 but it may demonstrate an intention to provide school children with a "high quality" source of the very information 2C:34-3 seeks to proscribe from children. It’s almost as if she has an intention to violate 2C:34-3.
This is why NJ Bill S2421, the "Freedom to Read Act," seeks to add an exemption for librarians to 2C:34-3, precisely because school librarians in New Jersey are likely violating the obscenity law vis-a-vis children. That librarian Martha Hickson knows this because she works directly with NJ Senator Andrew Zwicker and US Representative Andy Kim to get S2421 passed into law. See: https://www.njspotlightnews.org/2024/01/sen-andrew-zwicker-book-bans-librarian-harassment-north-hunterdon-high-school-martha-hickson/
Roxana Caivano, picture above right, is another school librarian who may be violating 2C:34-3. In her case, the aggravating factors are that she has sued the parents who complained about obscenity in school books—in a school board meeting. That defamation suit is so broad it even includes me. It is an effort to intimidate parents into silence. The intimidation tactic works so well that it is embedded in S2421. 7(b)(1): a librarian “shall have a civil cause of action for emotional distress, defamation, libel, slander, damage to reputation, or any other relevant tort, against any person who harasses” her. Harassment now includes calling out violations of 2C:34-3 at school board meetings, as the Caivano case demonstrates. If this isn’t an aggravating factor in 2C:34-3 prosecutions, that even raising 2C:34-3 violations in school board meetings could be considered harassment and subject people to lawsuit, I don’t know what is. American Library Association even trains librarians to file false defamation suits against parents to drain them of time and money, up to $500K, and to intimidate them into silence. Roxana Caivano has done that. All because some parents complained about what amounts to violations of 2C:34-3.
CONCLUSION:
In conclusion, looking at all the elements of the offense of NJ Rev Stat § 2C:34-3 (2013) Obscenity For Persons Under 18 and applying them to the facts of cases regarding New Jersey school librarians, it appears possible such librarians may be found guilty of having violated the law. Indeed they may have violated the law multiple times, once for each obscene book under NJ law. Such librarians should suffer the full consequences of the law and must not be allowed to get away with it by claiming they are only school librarians doing their jobs and are upstanding citizens of the community. People giving obscenity to children despite the law are not upstanding citizens of the community. Violating obscenity laws is not doing their jobs. Other states may have built in exemptions from obscenity prosecutions for librarians but New Jersey does not. Indeed librarians are now seeking to add that exemption per S2421 angelically named the "Freedom to Read Act." But S2421 is not law yet and never should be. The very people distributing obscenity to children should not be exempted from the law against doing so, especially where it is ALA itself writing that legislation and trying to get similar legislation passed nationwide.
And the "as a whole" defense to obscenity is a Miller case standard that doesn't apply in schools and that is not part of 2C:34-3. If you hear anyone say "as a whole" Let's Talk About It and the like are good books for children so children can see themselves, they are intentionally applying a false standard to mislead you.
The question is, will someone finally bring obscenity charges against NJ school librarians like Martha Hickson and Roxana Caivano, or will they be allowed to continue to use taxpayer funding to continue to violate 2C:34-3 and continue to harm school children. Shall we wait until American Library Association gets S2421 passed in New Jersey that exempts librarians from being charged with obscenity crimes so that nothing will ever be done, or should we go ahead now and file charges under the current law that hopefully will not be changed by the very people promoting obscenity for children?
Lastly, how long have New Jersey librarians been getting away with violating 2C:34-3 Obscenity For Persons Under 18? Forever. It was American Library Association itself that raised the issue by attempting to get the "Freedom to Read Act" passed in New Jersey that specifically exempted librarians from that law. They raised the issue. They know it’s a problem. Now that parents are aware, now is the time to hold New Jersey’s school librarians to the law. Now is the time to prosecute Martha Hickson and Roxana Caivano for obscenity for persons under 18.
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