PIERRE, S.D. — A bill to ban the use of state resources in organizing or hosting sexual exhibitions that lack “serious literary, artistic, political, or scientific value,” was sent to the 41st legislative day by a 4-3 vote of the Senate Education committee on Feb. 28.
Barring a “smoke-out” on the Senate floor — which requires 10 members to get the bill from committee to the floor and, the following day, 15 members to place the bill on the calendar for consideration — it’s the end of the line for House Bill 1116.
Rep. Chris Karr, the bill’s prime sponsor, said it was a response to a drag performance at South Dakota State University last fall, though part of the proposal specifically targeting drag performances was axed for a broader definition of sexual displays.
He noted that the Board of Regents, in their response to the event, had looked to the South Dakota Legislature on how regulating drag performances might interact with intellectual diversity statutes passed in 2019.
In addition to limiting state dollars from helping fund “lewd or lascivious content,” the proposal would have specified that “restricting or prohibiting the presence of minors” from an event was not a hindrance to intellectual diversity law.
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“As a legislator, I feel that we have a responsibility to protect our students and our families,” Karr said. “As an appropriator, I've always felt that I have a responsibility to monitor the utilization of state resources to ensure the best use of our taxpayer dollars.”
The core disagreement between proponents and opponents rested upon whether the bill was “narrowly tailored” enough to serve its purpose of ridding public schools, universities, technical colleges and other taxpayer-funded spaces of purely sexual content while not leading to administrators barring other activities not intended by the legislation.
A set of lobbyists representing public education in the state mentioned several of these potentially affected events in the context of public schools: certain drama productions, certain debate topics, “powder puff” events featuring male football players in cheerleading garb and more.
Rep. Scott Odenbach, of Spearfish, was one of a handful of lawmakers to see public education lobbyists opposing House Bill 1116 as a “scandal.”
“Parents and taxpayers should ask why and demand their schools withdraw from these groups,” Odenbach wrote on Twitter after the hearing.
Karr disagreed with this characterization of the law’s impact, noting that several South Dakota laws already in place require potentially even more vague judgment calls related to community standards of appropriate material.
Any censorship of events or performances would demand, at a minimum, events that meet the high bar of the legally defined three-pronged test regarding “obscene live conduct,” a bar Karr argued is taken directly from a United States Supreme Court decision that defined where free speech and sexual displays intersect and where they diverge.
“These are exactly the things that we talked about and I thought about working with the drafters on this bill. We don't want to hamper freedom of expression,” Karr said. “That's not what the intent is. We don't want to stop the arts.”
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But Sen. Tim Reed, a Republican from Brookings on the education committee, agreed with these worries of unintended consequences.
He was not swayed by Karr’s insistence that carve-outs in the law would protect any displays other than those aimed at a “purely prurient interest,” defined in statute as a “shameful or morbid interest in nudity, sex, or excretion.”
“Everyone likes intellectual diversity until they disagree with it. And I'm afraid that's what's happening here,” said Reed, one of three Republicans who voted to reject the bill. “The question that I have is who decides what's literary or artistic or serious?”
Jason Harward is a Report for America corps reporter who writes about state politics in South Dakota. Contact him at 605-301-0496 or jharward@forumcomm.com.
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