Fun Home Victorious!
Alison Bechdel’s Fun Home has been the source of controversy in various institutional contexts. College students have objected it being assigned or even suggested reading; a New Jersey superintendent suggested that the school could be “accused of debauching the morals of minors if we were to allow free access to this material” for simply having the book on library shelves; finally, but certainly not least, assigning it in a Twelfth Grade English class, with alternative options for objecting students, was enough to trigger months of agitation that culminated in a lawsuit accusing the school of providing obscene materials to minors. Recently this lawsuit came to a satisfactory end with the Superior Court dismissing the case with prejudice because it was so obviously deficient.
As I noted in my Intellectual Freedom Blog post, the key deficiency in the suit is that the plaintiffs failed to even argue the actual elements of obscenity. As the school noted in its motion to dismiss, constitutional free speech principles require that the work as a whole appeal to the prurient interest in sex, a few images of nudity or sex acts are insufficient. Nowhere did the plaintiffs even bother to address how Fun Home appealed to the prurient interest. Amazingly, having had this deficiency pointed out clearly by the school, the plaintiffs’ response again failed to address the actual requirements of obscenity law and instead just asserted the conclusion without discussion or evidence: “The Defendants [i.e the school] believe that the book does not violate our criminal statutes and the definition of obscenity, but there is no legitimate basis to include a book on a mandatory reading list with obscene pictures when so many alternatives exist including a ‘play version’ [of Fun Home] which does not include the obscene materials.” So the plaintiffs admit that the obscenity claim is contested but continue to assert the conclusion with no support. This is truly poor lawyering … or it would be if the goal was to win but I’ll return to that shortly.
While this complete failure to address the actual legal standard for obscenity was sufficient to doom the lawsuit, there was a more basic problem: the plaintiffs were seeking to enforce a criminal statute, that requires proof beyond a reasonable doubt in a jury trial, through a civil court action before a single judge. The entire basis of the plaintiffs’ claim was that they would suffer harm from “failure to enjoin, stay and/or restraint Defendants efforts to commit a criminal act.” As the Superior Court concluded in its dismissal: “The prosecution of complaints based on alleged violations of the state obscenity laws must be tried in the Criminal Division of the Superior Court.” (The court also made clear that even if it could hear a criminal complaint the plaintiffs would still lose for other reasons.) The result was simple, this suit was so frivolous that no complaint could go forward.
This outcome was obvious from the start. The attempt to deploy civil courts to enforce a criminal law is a bizarre oddity likely necessitated by the fact that no responsible prosecutor would file charges in such a case. While this was odd enough to merit dismissal, the failure to actually address the legal standards of obscenity would ensure that no court could take the claim seriously. But litigation is not always about victory. Here, the suit may have been designed, in part, to harass the school and force it to expend resources, though dismissal ended up taking relatively little effort, while hoping that it would remove the book to stop the suit. The broader value to pro-censorship groups is the demonstration that Christian Right groups are prepared to sue schools that dare to include Fun Home or similar queer literature in the future. The plaintiffs’ lawyer is affiliated with the Alliance Defending Freedom, a Christian Right group that often advocates for homo- and transphobic policies. The threat of litigation may be sufficient alone to deter future schools from taking the brave decision of choosing such challenging literature for their students. So a school district that considers the inclusion of Fun Home can expect a letter from groups like ADF threatening litigation and noting that a lawsuit was filed against Watchung Hills — no mention will be made that the suit was dismissed. The simple presence of the threat may be enough to push a cautious district to take a less controversial path. This happened in Mount Horeb, Wisconsin, where a threat of litigation from Liberty Counsel, another Christian Right group, was enough to lead a school to cancel a book reading. The fact that such a lawsuit would have no legal merit did not matter; in the face of a wealthy activist group, the safer approach is to roll over. I can only hope that future schools will see through such threats and stand up to such pro-censorship groups, as Watchung Hills Regional High School consistently did in the Fun Home controversy.