Kansas Library Laws

CRIMES - OBSCENITY - DEFINITION. Letter, June 7, 1976, Ernestine Gilliland, State Librarian, Topeka, Kansas.

Synopsis: The definition of obscenity found in 1976 Senate Bill No. 327 fully complies with the most recent definitive description thereof by the United States Supreme Court, in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d. 419, 93 S. Ct. 2607 (1973). Moreover, section 2(2) (b) is not unconstitutionally restrictive by virtue of its omission to include public and private libraries.

Dear Ms. Gilliland:

You inquire concerning the constitutionality of 1976 Senate Bill No. 327, an act relating to the crime of promoting obscenity and promoting obscenity to minors. The question which you enclose have been raised initially by Mr. Duane F. Johnson, director of the South Central Kansas Library System.

Section 1 (2) (a) of the bill amends the definition of obscenity presently found at K.S.A. 21-4301, to provide as follows:

" Any material or performance is 'obscene' if the average person applying contemporary community standards would find that such material or performance, taken as a whole, appeals to the prurient interest; that the material or performance has patently offensive representations or descriptions of ultimate sexual acts, normal or perverted; and that the material of performance taken as a whole, lacks political or scientific value."

This definition is precisely that which was approved by the United States Supreme Court in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). Clearly, the Kansas statutory definition conforms with that approved most recently by the United States Supreme Court, and is not unconstitutionally vague or defective in any other fashion.

Secondly, it is objected that a defense make available to public, private or parochial schools, colleges and universities was not make available to libraries, public or private. Section 2 (2) (b) states thus:

"[I]t shall be an affirmative defense to any prosecution under this section that:
... (b) The allegedly obscene material was purchased, leased or otherwise acquired by a public, private or parochial school, college or university, and that such material was either sold, leased, distributed or disseminated by a teacher, instructor, professor or other family member or administrator of such school as part of or incident to an approved course or program of instruction at such school."

It is not clear what legal objection is raised on this point. It may be argued, presumably, that libraries are denied equal protection of the law on the ground that they are denied the benefit of this defense. However, it is clear that the legislature is entitled to make reasonable classifications in the enactment of legislation designed for the protection of public health, morals and welfare. A public or private library is a demonstrably different institution in many important respects, from public, private or parochial schools, colleges and universities. I cannot conclude purely as a matter of law that the classification drawn by the legislature in this instance is so patently arbitrary or without foundation so as to constitute a denial of equal protection of the laws.

Accordingly, I cannot but conclude that the definition of obscenity set forth in 1976 Senate Bill 327 complies fully with the most recent definitive statement by the United States Supreme Court, and secondly, that the defense set forth in K.S.A. 21-4301a is not unconstitutionally restrictive by virtue of its omission to include public and private libraries.

- Quoted from Kansas Public Library Laws, Attorney General’s Opinions and Rules and Regulations, State Library of Kansas, March 1979.