The Future of Book Banning in Utah

Lost in the justified focus on the horrendous override of the governor’s veto to reinstate a ban on trans girls playing sports was the fact that Gov. Cox signed HB 374. This bill initially began as a much broader law that included a bounty provision trying to hold schools and their employees liable for financial damages. Luckily the law was neutered to mean functionally nothing but the law is more than just what is on the page. HB 374 will be used by the Utah Parents United (UPU) and other members of Natalie Cline’s army of bigots to harass schools, teachers, and librarians to remove books they don’t like.

So what does HB 374 formally do? It forbids schools from utilizing “sensitive instructional material.” This is defined as anything that is “pornographic or indecent material” under existing statute 76-10-1235. 76-10-1235(1)(a) has two relevant definitions. One is the definition of “pornography” which is just a standard obscenity statute under First Amendment law. The other, and the one more relevant here, is the harmful to minors statute which is an obscenity for minors statute, also written consistent with constitutional doctrine.

So schools are forbidden from carrying obscene material. This is no real change in the law, obscene material has always been illegal. The problem is that people like Natalie Cline and the UPU ignore the statute in their advocacy. As I’ve demonstrated more than a few times, such as here, the UPU based challengers always like to invoke the “law” without considering what the law requires. The easiest problem is that these challenges never engage with the work as a whole, which is a foundational element of the statute and First Amendment doctrine it is based on. At the link above you can see that UPU curriculum director Brooke Stephens’s own challenges all state that she didn’t even read the books challenged. This is repeated throughout the UPU’s Facebook page, Laverna in the Library, where the participants often celebrate refusing to read the books. That is fine; after all, the foundation of the freedom to read is the freedom to choose what to read. But the very statute that they celebrate and is the basis of HB 374 requires consideration of the whole context of the book. Excerpts are insufficient, you can’t declare a book obscene - or in the vernacular of the Utah statutes, pornography or harmful to minors - without demonstrating that the work “taken as a whole” appeals to the prurient interest, is patently offensive, and lacks serious merit. All three are required. I’ve underlined the “and” precisely because folks claiming legal backing ignore that all three are required. Not a single book the UPU opposes is even close to satisfying these terms. Despite repeatedly being informed of this basic legal fact, they still haven’t demonstrated any legal basis for their actions. But that’s simply because they personally don’t like these books and they believe their personal tastes must control the reading options of all students.

So does the law matter even if it will have zero formal impact? Absolutely. The UPU is already bragging on their Facebook group about how they are preparing “training” for schools in HB 374. Who knows what idiotic shit this will include but given their general public actions it will be a lot of lies about what the law requires and threats of punishment for violating it (even though HB 374 had the penalties stripped out. The real use of the law, however, will be harassment and intimidation. These folks are all over the place threatening legally unjustified obscenity prosecutions against teachers and librarians who dare think that kids can handle knowing that queer people exist, or that some folks experience the world differently based on race, or that some people [gasp] have sex … even queer people! This law will be used to continue that harassment. While any competent lawyer will inform the schools that there is no legal basis to the UPU’s threats, it will lead to cover for giving into the bigots and pretending it is about the law. Hell we’ve just seen one superintendent caught on tape ordering the removal of LGTBQ content because it offends conservative values, the only ones the school should care about. This is the world that UPU, Cline, and a lot of Utah Republicans desperately want.

At base the goal of this group of book banners is to ensure that the only stories kids have access to are sanitized, white, and straight. Their actual challenges demonstrate this clearly. They are allowed to try and present this fictitious world to their own kids but they have no right to foist it on the rest of Utahns. Sadly, with so many Utah districts already pulling back on these issues, see the lovely Davis School District here and here, I worry that too many will take the bait. What we need is organized resistance in support of books and the kids that UPU seeks to harm and purge from the public sphere.