Fighting Censorship in Utah

The ACLU of Utah has filed a lawsuit against Utah for its censorship of books in public schools. In brief, Utah requires the removal of any book that “depicts” sex without any consideration of merit or context and if 3 school districts (or 2 districts and 5 charter schools) remove a book then all schools in the state must remove that book and students are prohibited from even bringing their own copies. I’ve long criticized Utah practices and arguments in this vein, and I even specifically warned of the constitutional problems of these laws more than once, here is one link. But that hasn’t stopped the state from pressing its censorship agenda with hundreds of illegitimate removals from various schools and now 22 deemed so dangerous that no school can even allow a student to carry it in and read it on their own time. (I’ve been informed that the Utah school board backed down on its illegal demand that no student be allowed to bring their own copy of the books to school anymore. Apologies for the mistake.)

This is driven overwhelmingly by conservatives in two counties. Davis County School District, which has a long and sad history of institutionalized and cultural racism and homophobia, drives most of the censorship activity with support from Washington County where a leading pro-censorship voice is on the school board. This new generation of book challenger doesn’t read the books they hate, they only “know” the book is dangerous. While it is dressed up in concerns about sex and “pornography” the grounding is classic Christian Right narratives about proper morality and hierarchy in American society. The campaign is about undermining both education but also the fundamental existence of people that book banners hate. So I figured I’d take a look at the ACLU of Utah’s filing and offer some preliminary thoughts.

First, in terms of pure strategy, I love the choice of The Kurt Vonnegut Estate to be the lead plaintiff. Cause lawyering is about the complex interaction of politics and law and being good at public relations is crucial. By framing the case in the very title on Kurt Vonnegut rather than lesser known modern authors is a subtle way of highlighting to mostly older judges the breadth of this censorship. It targets not only material they might deem uninteresting but major works of modern literature, literature that many judges would have grown up with.

Second, in terms of framing this is a great complaint. It immediately starts off with a powerful attack on the banning law that strips “school libraries of any book that contains even a single description or depiction of sex, no matter how fleeting, no matter its context, and no matter its literary, artistic, political, or scientific value” (3). The entire history of obscenity law was about forbidding this kind of per se judgment. “[S]ex and obscenity are not synonymous” says the Supreme Court. It also doesn’t try to hide from sex. While there is no doubt that the pivot to sexual content was a PR move of the Christian Right groups seeking removal of books about Black, queer, female experiences, the ACLU’s complaint doesn’t stress that. Instead it notes that the law makes no evaluation of age, it treats a kindergartner and a high school senior as equivalent. This is particularly absured because Utah law allows sixteen year olds to consent to certain sexual activities but this book banning law says “you are mature enough to do this, but not mature enough to read about it” (4).

This framing is all about highlighting the legal critique that I and others warned the legislature about many times. Obscene books were always prohibited from school libraries (and anywhere else). But obscenity law requires judging a book by its whole, not just isolated passages, and consideration of its merit. Basically no prose novel comes close to being obscene today. The problem for Utah book banners is they simply reject free speech law and want a system that deems a book obscene because it dares to mention sex (or that queer people exist, that women face unique discrimination, or that Black folk maybe experience police violence differently than white people).

This brings me to the third and favorite part of this complaint: it engages carefully and smartly with the law. I’ve long written about Island Trees v. Pico (1982) (and someday may have a book out on it) with the key issue being both that Pico lacked a majority and that it included weak language on exactly what kinds of removals would be justified. The ACLU brief smartly handles this by dancing away from it. Pico is there but it is treated as nothing particularly special, invoked when appropriate but not framed as some kind of powerful right to read precedent. Instead the complaint invokes SCOTUS’s nonpublic forum doctrine which is far better developed and basically means that content based exclusions must be “reasonable in light of the purpose served by the forum” (6-7). A problem in book banning law has been the poor theorizing of libraries in First Amendment law. By invoking the nonpublic forum argument, the ACLU is able to center its case on the role of libraries and it draws upon Utah educational establishing that “school libraries provide students with lifelong skills of selecting information from a wide variety of sources, assessing its worth, and applying newfound knowledge to problems, as well as preparing students for learning, doing, and problem solving in college, career, and throughout life” (7).

These purposes are undermined by the Utah book banning law. The state prohibits constitutionally protected, non-obscene books for no reason other than a few passages are distasteful to some. Well as the complaint notes, existing policies already allow those objecting parents to control their kids reading—an argument I don’t love but that’s a future issue—but a sensitive parent doesn’t have the right to control the reading and choices of other people’s children.

So all in all, I’m a big fan of this complaint with the obvious caveat that it is the first move of a long litigation game. It demonstrates sophistication in strategy and legal argument, learning some lessons from other on-going cases, that sets up a good challenge. Will it win? Well, as I always remind my students, I’m the worst at prediction but I’m a pessimist in this modern era where Trump judges have relatively little concern for law and conservative ideology treats children as the property of their parents and schools as an indoctrination mill for conservative beliefs. But resisting censorship is always valuable even if a legal win could be difficult. The ACLU has put its best anticensorship foot forward and that is the best we can hope for when democracy itself is under dire stress.