Books Are Still Not Obscene
As pro-censorship groups increasingly invoke obscenity law as a supposedly neutral pretext for removing books they do not like from libraries, I feel like I’ve been banging the same drum. The message is pretty easy: none of these books are even close to obscene. Most recently I discussed Utah’s book banning law as one of many examples of this. Now another law enforcement agency has reached the same conclusion, which makes sense because obscenity law may be terrible in a lot of ways but there are a few quite clear requirements. Here is the Indian River County Sheriff Department’s investigative report as disclosed to me under Florida’s public records law.
Jennifer Pippin’s email 10/29/21.
As with such much censorship activity, this all started last fall when the ironically named Moms For Liberty, an anti-diversity and pro-censorship group, demanded the removal of 156 books. Had they read these books? Almost certainly not but this has never stopped censors before. Most of these folks celebrate their refusal to read the books they hate, arguing that isolated excerpts are sufficient to prove the books are dangerous. Jennifer Pippin, the lead censor here, demanded that “ALL the books currently in the libraries that sex, rape, drugs et etc in them that need to be removed immediately so they don’t get into the hands of anymore students in our district.” After a lot of drama, including the removal of all of these books for an unclear review process, the District removed five of the books (unjustifiably but that is a different discussion) at the end of February 2022; I believe a few others were removed earlier as well. It also added a method for parents to restrict access to particular books as well as prohibiting their child from using the library at all - and believe me, some of these folks are terrified of their kid reading a book.
Clearly unhappy with this only partial censorship of library material, about a week later Pippin took three books to the sheriff’s department to file criminal charges against the school and its officials. The books were The Perks of Being a Wallflower by Stephen Chbosky, Extremely Loud and Incredibly Close by Johnathan Foer, and Perfect by Ellen Hopkins. These are all common books challenged by the extremist right and they appear on the lists such groups circulate to save challengers the time of actually having to read a book. As has happened with every other instance of criminal charges that I’ve been able to locate - see the Flagler County experience here and here - the officer did his due diligence and correctly noted that there was no criminal offense here.
The key statute is the harmful to minors law in Florida Statute 847.001(6). This is just a standard obscenity for minors law. In addition to other problems with Pippin’s complaint, the officer correctly noted that the first element of the definition requires that the work “Predominately appears to a prurient, shameful, or morbid interest” with predominately defined as “meaning mainly; for the most part.” This is a representation of the fact that obscenity law requires the material to be considered as a whole. The use of isolated excerpts is prohibited. The officer noted that a few of the passages Pippin flagged could meet the definition of “sexual excitement” but that they all failed the requirement that it be predominate (let alone morbid or shameful). My favorite part is he noted that Pippin flagged content that only amounted to 1.84% of pages in Extremely Loud and Incredibly Close, 2.73% of Perfect, and 5.16% of The Perks of Being a Wallflower. After noting that Flagler County reached a similar result, the officer concluded that there was no basis for criminal charges. And this is without even getting to the other two elements of the harmful to minors law, that it is patently offensive and taken as a whole lacks merit. Sadly, in issuing his statement that no criminal charges were possible, the Sheriff did decide to opine that the books were bad in a transparent appeal to pro-censorship extremist voters.
Under existing law, this is the only appropriate outcome. The idea that any of these books come even close to obscenity is laughable. What these folks complain about is they don’t like a book. Guess what, I don’t actually like The Perks of Being a Wallflower for a bunch of reasons. I wouldn’t recommend it. But the difference is that I don’t pretend that my tastes should control what others read or like. Part of the joy of reading or consuming any information is finding what we like and no one else should be able to control that. Pippin and the other “Moms for Liberty” are demanding the ability to control the reading choices of all students in a school district and when they only don’t get everything they demand, they attempt to have librarians and teachers arrested. It’s a funny definition of liberty and, luckily, one the law rejects.
