Utah's Next Attack on Free Speech

It’s winter so that means another session of the Utah legislature. Most headlines have focused on the continued hate of trans people and anger at the idea that universities should be places for anyone but straight white folk. But the legislature also is hearing yet more book banning proposals from Rep. Ken Ivory. The real horror show is HB417 which threatens misdemeanor charges for any teacher or librarian that dares to have a book that communicates ideas that Ivory doesn’t like. On its face, this law is absurd and reaches no books - none whatsoever. Underneath this reality, however, is yet additional official effort to terrify teachers and librarians from providing access to material about people of varying races, queer folk, or anything that even suggests humans might have sex. Well any animal I guess, but especially humans.

HB417 provides definitions for “objective sensitive material” and “subjective sensitive material.” These are silly ideas because the idea of “objective sensitive material” is absurd. It turns out not to matter really because these definitions just point to three other existing statutes. First, material that is “pornographic” under state law but the statute is just a straight up obscenity law. This makes sense because under the First Amendment the state can prohibit obscenity but not pornography. Second, material that is harmful to minors which is just the standard test for obscenity keyed towards minors as the reference group. As I’ve explained at length many, many, so many times here - and I just published an academic article on it! - Ivory and his book hating cohorts fail to follow the basic requirements of the law in these statutes: that the work must be taken as a whole. Ivory likes to pull select quotes out of context to shock audiences and pretend that the books are “pornography.” Of course this is how you get the Bible banned for a time in Davis County Schools because, under their own metrics, the Bible is a sexually explicit and dangerous book. Since you legally can’t hold a book obscene for a passage or panel out of context, then the third definition of sensitive material is carrying the entire weight of the conflict.

Utah Code 76-10-1227

The last definition of sensitive material turns to 1227 above. This statute defines “illicit sex or sexual immorality” with definitions focused on “description or depiction” of various things. These are absurd categories on their face and lead to some pretty funny results - such as the banning of the Bible as mentioned above. Goodbye art books! There are two basic issues with this language legally. First, it describes a slew of constitutionally protected material. For example, let’s take the frequent target George Johnson’s All Boys Aren’t Blue. Now Johnson’s book doesn’t “depict” anything because it has no pictures. But Johnson does describe their first sexual experiences, one that was molestation by a relative and the other which would count as “sodomy” under (1)(a)(ii). But this cannot be criminally punished unless it is obscene, as to adults or minors, and it is neither. After all the book must be taken as a whole to be found to appeal to the prurient interest in sex and this certainly can’t meet either. Arguing that an author talking about their sexual experience, in a single chapter, is encouraging an unhealthy interest in sex amongst even teens is absurd. “Sex and obscenity are not synonymous” as the Supreme Court said way back in 1957. There is nothing prurient about the book. We can do the same with Maia Kobabe’s Gender Queer which is a graphic memoir about growing up nonbinary and asexual. Folks on social media love to throw around a single page that shows Kobabe and a partner having sex (in cartoon form) with a strapon screaming “Ha! You can’t defend this.” Not only can I defend it, it illustrates the very problem with Ivory’s position: failure to read. Kobabe’s book “depicts” sex but it is not in any sense even erotic let alone prurient. The scene, in context for anyone who actually reads, is about ending sex because of one’s discomfort and communicating boundaries you aren’t comfortable with. Not only isn’t it prurient, this is a healthy and valuable message. You may just not like how it is delivered and that’s fine because you can just not read it.

The final problem with 1227 however, is the violation of obscenity law in that it allows criminal punishment for material with serious merit. Section (2) states that pursuant to this section it does not apply to any material which, when taken as a whole, has serious value for minors meaning “serious literary, artistic, political, or scientific value for minors” taking into consideration their ages. This destroys any application of this statute to books because all of the targets, without fail, surpass this test; this is why the Bible was rightly returned to the shelves in Davis County. Interestingly, the legislature a couple of years ago tried to sneak around this with a preemptive declaration that anything under (1)(a)(i-iii) above could have no serious value for minors. This is amusing because for some reason it leaves out the touching of a female breast but not an erect penis. Regardless, this is unconstitutional: the legislature cannot preemptively declare material without social value. And it isn’t hard to see how it fails. For example, a sex education volume that depicts the male anatomy may depict a penis “in a state of sexual stimulation or arousal” but that has obvious scientific value for minors. Similarly, any number of Renaissance paintings or sculpture are full of depictions of genitals, petting, and the like and clearly have artistic value. Every single target of book banners easily passes this test as well.

So if the law does not legitimately apply to any of its actual targets, why do I care? Because the goal is to terrifying teachers and librarians and spread a chill of conformity across them. Sure, the books targeted by book banners like Ken Ivory are fully protected but if you dare to mention them then you face harassment and the potential for criminal charges. You will win the criminal case eventually, but that would be after thousands and thousands of dollars that few of us have laying around. To say nothing of the stress faced by defendants in such a situation. Instead, better to just comply and refuse to stock anything that Ken Ivory doesn’t like people to read, like stories about queer people or Black people facing different experiences because of racism. This chilling effect is powerful and widespread, just talk to any teacher at the moment. I hope the legislature decides to reject this later attack on hard working public servants but it has become increasingly reactionary and beholden to extreme minority opinions, so I don’t hold out much hope.