Senate approves bill removing a statutory affirmative defense for distributing material harmful to minors, with appeal process added

The South Dakota Senate on March 10 approved House Bill 12‑39, a measure that removes a statutory affirmative defense for those who knowingly provide material harmful to minors at taxpayer‑funded institutions and requires local policies and an administrative appeal pathway.

Sponsor Senator Julie Nelson said the bill responds to parents and community members who have found explicit material on school and public library shelves. "This bill removes the affirmative defense or carve‑out that has allowed educational organizations to disseminate harmful material to minors," Nelson said, adding that state statute already excludes material that has "serious literary, artistic, scientific, or political value."

Opponents, including Senator Reynold Smith, argued that professional librarians and educators already follow procedures and that the bill risks criminalizing routine professional decisions and will chill professional judgment. "My wife is a librarian... We don't need this law," Smith said.

Senator Brock Wheeler successfully offered an amendment to establish a local review and appeal process instead of relying primarily on criminal prosecution. Wheeler described the change as a way to resolve disputes through school boards or library governing bodies and, if necessary, through civil court, rather than by threatening criminal charges. The amendment passed on a roll call 18 yeas to 16 nays with 1 excused. After further debate, the full bill as amended passed on a final vote.

What the law does: as adopted, the measure removes the statutory affirmative defense that had been cited by some library and school officials as shielding distribution decisions; it requires public entities to maintain review policies and to provide an appeal to local governing boards with the option to seek judicial review. Supporters said the change gives parents a defined route to challenge material while the Wheeler amendment reduces the risk that professionals would face criminal prosecution for judgment calls.

Vote and next steps: The Senate approved the bill as amended and the measure proceeds toward final enrollment; supporters said it does not ban books from libraries but limits taxpayer‑funded access to material deemed obscene for minors and requires institutions to adopt review and appeal policies.