Did the 1998 harmful-to-minors law give public and school libraries the same defense as college libraries?

Plain-English summary

A senator asked whether public and school libraries stood in the same position as college and university libraries under the harmful-to-minors law. The Attorney General said yes. It read the statute's affirmative defense as covering all four kinds of library when the organization carried out its legitimate functions or an employee performed a legitimate duty.

The opinion explained that “public,” “school,” “college” and “university” all modified “library” in the statutory list. Reading “public” by itself would make little grammatical sense. The answer described an affirmative defense under the then statute, not an exemption from the offense's other terms.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a public library qualify for the same defense as a university library?
A: The AG said yes, if the library or its employee was carrying out a legitimate function or duty within the statute's conditions.

Q: Were school libraries included too?
A: Yes. The letter read “school” as modifying “library” in the same list.

Q: Did the opinion say all library distribution was automatically lawful?
A: No. It addressed a statutory affirmative defense tied to legitimate library functions and employee duties.

Background and statutory framework

The letter interpreted § 16-15-385(C)(2), focusing on the grammar of its list of covered organizations. It applied ordinary statutory-reading principles to conclude that public and school libraries were included.

Citations and references

• § 16-15-385(C)(2), the affirmative-defense provision interpreted in the letter.

Official title

As to whether public libraries and public school libraries fall in the same category as college libraries with respect to the law dealing with distributing offensive or harmful material to minors.

Requester

The Honorable Mike Fair, Senator, District No. 6

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-22-1998-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98june22fair.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATTORNEY GENERAL

June 22, 1998

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The Honorable Mike Fair
Senator, District No. 6
P. 0. Box 14632
Greenville, South Carolina 29610

Re: Informal Opinion
Dear Senator Fair::
You seek an opinion of this Office as to whether public libraries and public school libraries fall in the same category as college libraries with respect to the law dealing with distributing offensive or harmful material to minors.

Law I Analysis
S.C. Code Ann. Sec. 16-15-385 provides in pertinent part: (A) A person commits the offense of disseminating harmful material to minors if, knowing the character or content of the material, he ( 1) sells, furnishes, presents, or distributes to a minor material that is harmful to minors; or (2) allows a minor to review or peruse material that is harmful to minors. A person does not commit an offense under this subsection when he employs a minor to work in a theater if the minor's parent or guardian consents to the employment
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PosT 0 FF1CE Box 11549

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CoLUMlllA, S.C. 29211-1549

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T ELEPHON E: 803-734-3970

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FAc:s1M11.E: 803-253-6283

The Honorable Mike Fair
Page 2
June 22, 1998
and if the minor is not allowed in the viewing area when material harmful to minors is shown. Section 16-15-375(1) defines the term "harmful to minors." Such Subsection states: "Harmful to minors" means that quality of any (1) materials or performance that depicts sexually explicit nudity or sexual activity and that, taken as a whole, has the following characteristics: (a) the average adult person applying contemporary standards would find that the material or performance has a predominant tendency to appeal to prurient interest of minors in sex; and (b) the average adult person applying contemporary community standards would find that the depiction of sexually explicit nudity or sexual activity in the material or performance is patently offensive to prevailing standards in the adult community concerning what is suitable for minors;

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and
(c)
to a reasonable person, the material or
performance taken as a whole lacks serious literary,
artistic, political or scientific value for minors.
Section 16-15-375(5) defines "sexual activity." "Sexually explicit nudity" is defined by Section 16-15-375(6). Section 16-15-385(C)(2) provides as follows:
[e]xcept as provided in item (3) of this subsection,
mistake of age is not a defense to a prosecution under this section. It is an affirmative defense under this section that

(2)
the defendant was a school, church, museum,
public, school, college or university library,
government agency, medical clinic, or hospital carrying out its legitimate functions, or an employee or agent of

The Honorable Mike Fair
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June 22, 1998
such an organization acting in that capacity and
carrying out a legitimate duty of his employment.
Subsection (D) makes this offense a felony, and upon conviction a violation thereof must be imprisoned for not more than five years or fined more than five thousand dollars, or both.

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b.

The issue which you raise in your letter is whether public libraries and public school libraries fall in the same category as college or university libraries for purposes of the affirmative defense provided in§ 16-15-3 85(C)(2). In other words, is it an affirmative defense under the "Harmful to Minors" statute that the defendant was a public library or public school library? My reading of this provision is that public libraries and public school libraries are placed in precisely the same legal position as college and university libraries for purposes of § 16-15-385(C)(2). The statute provides both public libraries and public school libraries an affirmative defense where either of these entities is "carrying out its legitimate function, or an employee or agent of such an organization [is] acting in that capacity and carrying out a legitimate duty of his employment." A number of principles of statutory construction are important in resolving your inquiry. First and foremost, in interpreting a statute, the primary purpose is to ascertain the intent of the General Assembly. State v. Martin, 253 S.C. 46, 358 S.E.2d 697 (1987). An enactment should be given a reasonable and practical construction, consistent with the purpose and policy expressed in the statute. Hay v. S.C. Tax Commn., 273 S.C. 269, 255 S.E.2d 837 (1979). Words used therein should be given their plain and ordinary meaning. First South Sav. Bank, Inc. v. Gold Coast Associates, 301 S.C. 158, 390 S.E.2d 486 (Ct. App. 1990). Moreover, the full effect must be given to each part of the statute, and in the absence of ambiguity, words must not be added or taken from the statute. Home Building
& Loan Assn. v. City of Sptg., 185 S.C. 313, 194 S.E. 139 (1938). An absurd result is to be avoided, Powell v. Red Carpet Lounge, 280 S.C. 142, 311 S.E.2d 719 (1984), as is any interpretation which would render parts of a statute as mere surplusage. Bruner v. Smith, 188 S.C. 75, 198 S.E. 184 (1938). In addition, ordinary rules of grammar may be used for interpretation. Op. Atty. Gen., May 22, 1984. ft is evident from the form in which the statute is written, that public libraries and school libraries are to be included within the scope of§ l 6-l 5-385(C)(2). The only way the provision makes any sense is to read the words "public," "school," "college" and

The Honorable Mike Fair
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June 22, 1998
"university" as all modifying the term "library." Any other reading would have the term "public" standing alone as a separate entity, which is an unreasonable interpretation. A similarly worded statute in New York has been interpreted to include public libraries. In Matter of Quad/Graphics, Inc. v. Southern Adirondack Library System, 664 N.Y.S.2d 225 (1997), the Court construed a statute which required that the records which contain names or other personally identifying details regarding the users of "public, free association, school, college and university libraries ... " confidential. The Court ruled that the statute applied to the Saratoga Springs Public Library.

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In summary, it is my opinion that the General Assembly has, in§ 16-15-385(C)(2), expressly included public libraries and school libraries and that the statute treats these libraries the same as college or university libraries. This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in- the manner of a formal opinion. With kind regards, I am

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Robert D. Cook
Assistant Deputy Attorney General

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