Criminalizing Libraries in Missouri
It was once common for government to criminally punish the sale of books because they were judged to be “obscene.” Obscenity could mean anything sexual, foul mouthed, or just outside the norms of community comfort, say a book depicting interracial love. Thankfully that approach fell apart in the 1960s and today there is no serious possibility of criminally charging a person who the simple act of selling a book. This is why book challenges are the key to my work. Now unable to utilize the government’s criminal power to coerce others to conform to their moral standards, people have to turn to attempts to have books removed from or restricted within libraries and schools. Some, however, are not content with that situation. They seek to bring back the good old days where a publisher, seller, or librarian simply refused to engage with material out of fear of the government. Currently, Missouri Representative Ben Barker is attempting to do just that. While his bill would not justify the removal of any frequently challenged book legally, it is aimed at intimidating libraries into self-censorship to avoid controversy and the threat of criminal charges.
Barker proposed HB 2044 seeking to limit “age-inappropriate” sexual material in libraries. He claims that this was designed to target Drag Queen story time events and that he would never censor books but the law applies to all material, thus I focus on books. To enforce this, Barker proposes the creation of parental library review panel boards. These boards would be five elected members. But they would not be elected in a general election; instead elections “will be held at a regularly convened hearing of the” relevant local body with “qualified voters present” electing the board. This means that the people who happen to be at a town council meeting, for example, would select the board members. This is an attempt to skew the boards because almost no one ever shows up to such local governmental meetings except those with business before the council or those with unusual motivations. Barker is betting that religious conservatives will show up in sufficient numbers to capture the boards. Importantly, “No member of the board shall be an employee of the library, the state, or any political subdivision thereof.” Thus anyone with professional experience is immediately removed as untrustworthy.
Once constituted, the board is empowered to hear complaints at “public hearings at which members of the community may present concerns to the board.” The board is then to decide “whether any sexual material provided to the public by the public library is age-inappropriate sexual material” and, if so, order it removed. The board’s decision is final and cannot be questioned by the library or its staff. In fact, a library employee who “willfully neglects or refuses” to abide by the removal is subject to a misdemeanor charge holding up to a year sentence and $500 fine. Would this be constitutional? Who knows. As I’ve written before, the law around library removals is vague and unclear. Assuming Board of Eduction v. Pico (1982) is controlling, then the issue in book removals is whether it was removed solely because the institution disagreed with the message of the book. This, then, is a fact-intensive inquiry but it is difficult to imagine removals under Barker’s law being based on anything else. This issue, however, is not likely to be important even if the law does pass because, luckily, Barker doesn’t attempt to rewrite obscenity law. Quite simply there is no reasonable basis for concluding that a public library book will regularly fit his definition of age-inappropriate.
Barker’s definition of age-inappropriate, above, ensures that no book removal could survive legal scrutiny. This definition tracks closely the constitutional standard the Supreme Court mandates for obscenity, though modified for obscenity to minors. A first key issue is that it begins by requiring that the book be taken as a whole. This is designed to prevent censors from identifying one excerpt of the material and outlawing the whole. The second element just repeats the core pointlessness of obscenity law: that a work be patently offensive according to community standards. This is pointless because it is hopelessly vague and assumes that this community standard exists. Challengers tend to assume that they are the community and all are equally offended without evidence. But the real problem for Barker is the final prong of the definition: that the work “Taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.” This is where the law, if ever enacted, will fail pretty much every time tested because nothing that challengers regularly target will lack such serious merit. I’ll illustrate this with an example of a frequently challenged book: Robbie Harris’s It’s Perfectly Normal (“IPN”).
IPN is the exact type of book that people like Barker see as age-inappropriate. Harris’s book is designed to provide kids entering puberty and beyond with sex ed. It lays out how bodies change, pregnancy, sexual orientation, and, yes, what sex is and looks like. IPN has full color drawings illustrating bodies and processes. Harris says that she always knew it would be controverisal “But I really didn't care. To me it wasn't controversial. It's what every child has a right to know.” IPN is often challenged, making the American Library Association’s top 10 list four times since publication. Above is an example of a challenge to the 2014 edition of IPN. The challenger sees it as inappropriate because it provides information about sex, an “intro to sex” that could “traumatize” a child unless they’ve had “this discussion first” with their parents. This is the most common complaint about IPN, that it provides information that should only be filtered through parents. Giving children access undermines parental authority to keep their children ignorant of basic science and health.
So let’s imagine a parental review board hearing a challenge to IPN applying Barker’s proposal. It is certainly sexual and includes representations of nudity and sexuality but there is no basis for finding it inappropriate under the definition offered. First, the work taken as a whole must appeal to the prurient interest of minors. As a whole, IPN is a sex ed book providing factual information in an amusing way. Obscenity law requires that the whole encourage a prurient interest in sex, in other words an unhealthy and excessive interest. While such challengers might see any interest in sex as excessive and unhealthy, there is no reasonable basis for educational materials to be treated as such. Further, this challenger, and all challengers, don’t care about the book as a whole, they didn’t even read it; it was sufficient to find a few images but the law rejects that approach. The second prong, patently offensive, is the easiest to make the case for IPN because it lacks any coherent definition and turns on the community. However, the extensive excellent reviews, medical endorsement, and popularity with parents would generally undermine this claim. The problem with Barker’s law, though, really turns on the third prong: that the work as a whole lacks serious merit. IPN certainly can’t fit this definition. It is well-researched and thoroughly updated to provide scientific, reliable information to children (and their parents). Information that children too often lack thanks to schools being hamstrung by state legislatures. This, by definition, is serious scientific merit.
The ultimate problem with IPN is that challengers believe that children should learn nothing about sex other than abstinence until marriage. They believe anything that is sexual is inappropriate. Luckily for the rest of us, obscenity law forbids that equivalence. If you take a look at the list of frequently challenged titles, you will be hard pressed to find a single book that could be removed legitimately under Barker’s law. As I noted when a similar law was proposed in Maine, the law would always protect the material commonly attacked as inappropriate. Does this mean the law is unimportant? No. If passed, it would (likely) be facially constitutional as it embraces the general requirements of obscenity law and thus any legal challenges would be to incidents of removal. This requires time and resources that are hard to come by. Furthermore, any such lawsuits would impose costs on libraries themselves as they would be the one’s sued, not the parental board of censors. The real point of such a change is to intimidate libraries into self-censorship. Don’t acquire the book at all unless the most sensitive minority in a community is ok with it and they are never ok with anything sexual so all such books should be removed completely.
Hopefully we will not get to that point. Political scientists often talk about position taking in politics. Politicians propose bills to be able to advertise their positions to constituents but know that they will never become law or even come to any type of hearing or vote. This may be that. And if it comes to a vote, hopefully the fact that book challengers seek to control the choices of other parents will help defeat it. Attempts to do similar things in 2019 failed in Maine and Montana. And a much more dramatic attempt to unconstitutionally rewrite obscenity law failed in Florida as well. Legislating against books turns out to be much more difficult than challengers believe.
