I’ve written about an attempt in Maine to apply an obscenity law to teachers who assign “controversial” literature to children. Part of my argument there was that while the law would likely be successful in intimidating teachers, it would not lead to convictions because there is no reasonable argument that the books complained about by challengers are legally obscene. While Maine wisely rejected this move. Florida has been engaged in a steady war on the right to read that, if successful, will likely send a chill across the state’s curriculum. Only materials acceptable to the conservative Florida Citizens Alliance (FLCA) would be allowed in classrooms across the state. Any representation of controversy, and according to these groups anything outside of a heteronormative Christian outlook is “controversial,” will subject teachers to criminal charges. This was motivated, in part, by the failure of a 2017 law to result in the wholesale removal of material that the FLCA objects to. For my purposes, and the law is far broader than my limited concerns, this will mean the elimination of nearly all modern literature from not only the curriculum but school libraries as well; whether it would be limited to modern literature is an open question as well. Here, I outline two of the most objectionable elements in HB 855.
First, and truly staggering in scope, is Section 1(3) which redefines child pornography. Traditionally, child pornography is punished because it is by definition child abuse and all images of such abuse fall outside of free speech protections. Obviously every state would punish a teacher who distributed child pornography to students. HB 855 seeks to expand the definition (note all underlined portions are proposed additions to the statute): “‘Child pornography’ means any image or text depicting a minor engaged in sexual conduct.” This then changes child pornography from an image that is intrinsically linked to the sexual assault of a child to any text, whether fiction or non-fiction, that depicts a minor engaging in sexual behavior. This breaks the purpose of exempting child pornography from free speech protections: because such pornography cannot exist without the illegal sexual exploitation of actual children. A fiction book that depicts children who are by definition not real engaging in sex, whether healthy or not, is now covered. This is the goal of right wing attacks on the freedom to read. Challengers frequently invoke the argument the depiction of sex in books as reason to ban them. Thus, the discussion of masturbation in Sherman Alexie’s The Absolutely True Diary of a Part-Time Indian converts a semi-autobiographical coming of age tale into illegal child porn. Similarly, the exploration of a fourteen year old’s post-rape trauma in Laurie Halse Anderson’s Speak is now illegal because it depicts “sexual activity.” As YA literature often focuses on realism and portraying the actual lives that people live, this would criminalize school use of a massive amount of current works. But it certainly does not end there. After all, Romeo and Juliet depicts two teens, Juliet is 13, developing a sexual relationship. I learned recently, from Joan DelFattore’s What Johnny Shouldn’t Read, that some publishers once, and maybe still do, removed the sexual elements of the play. Perhaps that is what the FLCA wants for all literature, a right to edit it to their sensibilities.
Luckily this change, if adopted, would violate strong First Amendment precedent. When Congress attempted to extend criminal punishments to “virtual child porn,” images of adults that were manipulated to make the participants appear younger, the Court struck it down. Justice Kennedy wrote that in contrast to laws punishing real child pornography, “speech that itself is the record of sexual abuse, the [law] prohibits speech that records no crime and creates no victims by its production.” As it records no crime nor creates victims, the material had to be judged by obscenity standards under the First Amendment. The same standard should lead to the invalidation of HB 855’s definition as it criminalizes works that do not depict any actual children being victimized.
To guard against this likely outcome, the second of many objectionable changes proposed by HB 855 would alter the definition of obscenity itself. The proposal would punish schools for not only providing child pornography to students but material that is “harmful to minors.” This is defined as:
(6) “Harmful to minors” means any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it:
(a) Predominantly appeals to a prurient, shameful, or morbid interest;
(b) Is patently offensive [to prevailing standards in the adult community as a whole] with respect to what is suitable material or conduct for minors; and
(c) Depicts an image or text that meets the definition of “deviate sexual intercourse” under subsection 5 [Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.]
The material removed is key, this is the text in brackets above. By the removal of the existing standard that judges whether a work is patently offensive by the standards of the whole community, HB 855 seeks to punish people who deviate from the particularly narrow standards of the FLCA’s understanding of acceptable materials. Subsection (c) is completely re-written. Florida law states that “‘deviate sexual intercourse’ means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.” So any depiction of non-martial oral or anal sex is deviate in Florida’s standards. Now a single scene depicting oral or anal sex is enough to justify criminal prosecution of a teacher or librarian, no amount of redeeming “literary, artistic, political, or scientific value" is enough to justify this change. So the famously awkward oral sex scene in John Green’s Looking for Alaska, a scene that spanned many challenges, would now open teachers to criminal prosecution. This change would, I hope, be invalidated as a transparent attempt to violate First Amendment obscenity standards that require works to be judged as a whole precisely to make sure that broader merit is considered.
As with Maine, I believe that the substantive changes are unwise but in Florida they are obviously an unconstitutional attempt to re-write free expression doctrine. This is part of a long process through which FLCA has attempted to obstruct science and literature education. Eric Otto provides a detailed look at the foundations of the FLCA’s campaign of censorship and CBLDF provides shorter looks here and here. Even if the provisions above are invalidated, as I hope any sane court would do, HB 855 proposes so many procedural requirements and regulations in place that challenges, brought by pro-censorship activists, would become a major burden upon many school districts. That would likely have the same effect as the unconstitutional criminal bans: encouraging teachers and schools to self-censor their curriculum and library collections to avoid controversy. Luckily before HB 855 was considered in committee the above provisions were removed and a much stripped down version, mostly providing for transparency in curriculum, was proposed. The Senate version, however, was unchanged and time will tell if the FLCA’s attack on literature will pass.
