North Dakota Library Law: Obscenity Control

The Miller test, also called the three-prong obscenity test, is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited. It looks at current community standards, offensiveness, and overall value. Material must fall under all three categories to be considered obscene and not protected by free speech.

North Dakota Century Code has the Miller Test noted in  §12.1-27.1-01 #5:

5. As used in this chapter, the terms "obscene material" and "obscene performance" mean material or a performance which:

a. Taken as a whole, the average person, applying contemporary North Dakota standards, would find predominantly appeals to a prurient interest;

b. Depicts or describes in a patently offensive manner sexual conduct, whether normal or perverted; and

c. Taken as a whole, the reasonable person would find lacking in serious literary, artistic, political or scientific value.

It goes on to note that these standards will be judged on the perspectives of normal adults, except in such cases that the intended audience is minors. Then material will be judged on the perspectives of the intended audience.

§12.1-27.1-03.5 prohibits public libraries from maintaining explicit sexual material in the children's section. It defines explicit sexual material using the Miller Test for Minors:

(1) Taken as a whole, appeals to the prurient interest of minors;

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

(3) Taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

It also requires that libraries have a policy and process for going through the library's collection for compliance with the law. The policy must contain a procedure:

a. for the removal or relocation of explicit sexual material

b. for the development of a book collection that is appropriate for the age and maturity levels of the individuals who may access the materials, and which is suitable for, and consistent with, the purpose of the library.

c. for the public library to receive, evaluate, and respond to a request from an individual regarding the removal or relocation of one or more books or other materials in the library collection containing explicit sexual material; and

d. to periodically review the library collection to ensure the library collection does not contain explicit sexual material in the children's collection.