States Try To Strip Sex From Literature in Libraries, Schools

These aren't outright bans. But they still can chill free speech and academic freedom.

State lawmakers are getting creative in their attempts to control what young people read. Across the U.S., we're seeing legislation aimed at school materials and public libraries.

These measures often wear the mantle of "parental rights" or "protecting kids" from obscenity. But in practice they tend to take aim at any books depicting sex or sexuality.

These aren't outright book bans. But they still strike at the heart of things like student privacy and academic freedom, giving the most conservative parents, politicians, or administrators the power to determine what anyone can access of offer at public institutions.

A Three Strikes Bill for Books

In Utah, House Bill 29 will remove books from school libraries and curriculum statewide if a handful of schools deem them "sensitive material." The bill has passed both chambers of the state legislature and is now awaiting the governor's signature.

A statewide prohibition will be triggered if at least three school districts or two districts and five charter schools deem a book or other work to be inappropriate. This will happen automatically unless the Utah State Board of Education votes to override a statewide ban.

Opponents say the bill will allow the most conservative districts and schools to set standards for schools throughout the state. "This is the antithesis of local control," state Rep. Carol Spackman Moss (D–Holladay) said on the state House floor last month. "Parents can and should be the ones who monitor their children's reading—not the government."

HB29 also expands the definition of the "sensitive materials" not allowed in schools. Previously it just meant "pornographic or indecent" material. Now it also includes any material deemed "harmful to minors"—a category that includes "any description or representation, in whatsoever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse" when, taken as a whole, it "appeals to the prurient interest in sex of minors; is patently offensive to prevailing standards in the adult community…with respect to what is suitable material for minors; and…does not have serious value for minors"—and may also include "material that includes certain fondling or other erotic touching."

Under this standard, basically any books that discuss sexual feelings or acts beyond kissing will be off limits.

Does Your Parent Know What You're Reading, Young Lady?

Georgia lawmakers are taking a different approach to controlling what kids read. A measure that moved forward in the state's Senate last week would make school libraries notify some parents of what books their kids check out.

Senate Bill 365 says "a parent of each student enrolled in public school shall be notified in writing of the option to receive an email notification each time such student obtains material from a library operated by the public school where the student is enrolled."

The legislation passed out of the Senate Education and Youth Committee in a 5–4 vote on February 21.

The following day, a Senate committee voted to move forward with another bill related to schools and books. This one could criminalize school librarians and administrators who allow students to access content deemed "harmful to minors"—a broad category that could encompass a huge host of young adult literature.

Under existing Georgia law, it's illegal to knowingly sell or loan to a minor any "harmful" visual or written depiction of "sexually explicit nudity, sexual conduct, or sadomasochistic abuse" or any verbal description "of sexual excitement." It's also illegal to knowingly "exhibit, expose, or display in public" such materials at a newsstand, business, or public place open to minors. But there's an exception to all this for "any public library operated by the state or any of its political subdivisions [and] any library operated as a part of any school, college, or university."

Senate Bill 154 would remove "school" from that exceptions list. This means that books deemed OK for a public library or college library could be illegal to stock on the shelves of a high school library.

Arrest All the Librarians!

Like the Georgia bill, West Virginia House Bill 4654 would remove protections from prosecution for school libraries, as well as for schools more broadly, for public libraries, and for museums.

Under current West Virginia law, "any adult who knowingly and intentionally displays obscene matter to a minor could be charged with a felony, fined up to $25,000 and face up to five years in prison if convicted," notes The Parkersburg News and Sentinel. That law contains an exemption for "bona fide schools, public libraries, and museums," but the West Virginia House has now voted 85–12 to remove that exemption.

This issue seems somewhat less broad than the one in Georgia, since it applies only to obscenity generally and not the more expansive "harmful to minors" category. Then again, obscenity is notoriously hard to define, revolving around vague concepts such as "community standards" and "prurient interest."

The chief danger here is that even if mere descriptions of sex in literary works wouldn't be considered obscenity, institutions may remove them anyway to avoid the hassle of having to fight over it. Or to avoid a finding that "community standards" have changed and that now The Perks of Being a Wallflower or The Handmaid's Tale are, in fact, considered obscenity in the state.

Pushing Back…Kind Of

In response to a recent resurgence in "book banning" attempts, some states are offering "right to read" statutes. "California and Illinois have already passed laws to try to limit book bans," reports Axios, and "more than a dozen other states, including Washington, are considering similar measures."

But these measures seem mostly performative, and some—like Maryland House Bill 785—could backfire spectacularly.

The Washington Post's Petula Dvorak called the Maryland bill "one of the most disquieting pieces of legislation"—not because of what's in it but because of what it's meant to protect against. It says a library shouldn't exclude material "because of the origin, background, or views of a person who created the material" or "prohibit or remove material…because of partisan or doctrinal disapproval."

Yet neither of these planks would prohibit the removal of books on the grounds that are most frequently cited in these debates (that is: sexual content deemed inappropriate for minors). Even when some of these challengers seem intent on protesting any books with gay romances or transgender characters, they don't generally say "we want this gone because of THE GAYS." They'll find a passage describing a sexual encounter, or masturbation, or some such thing, and seize on that. It's all cloaked in the language of stopping young people from being exposed to sexual themes.

Meanwhile, such a doctrine could prevent a library from excluding some books that the folks behind the Maryland bill might not like to see on the shelves. After all, wouldn't banning Nazi literature be based on the "views" of the author? And even if nothing so extreme is on the table, the doctrine would give a lot of room for authors whose books aren't stocked to claim they're being discriminated against in a way that violates this law.

It just seems likely to create more headaches than it prevents, at best.

(Meanwhile, the Maryland bill would also raise the fine for disfiguring a library book from $250 to $1,000.)

Book Busybodies Begone

There is one facet of all this school book legislation that seems potentially useful: limits on who can challenge inclusion of books in school libraries. What we've seen recently is some people with political agendas challenge books to make a point, or a few cranks challenging tons of books, which administrators must nonetheless investigate. So bills limiting challenges in various ways—such as allowing them only from the parents of students at a school—could help prevent frivolous challenges and political stunts.

One of these has cropped up in an unlikely place: Florida.

Florida has been a hotbed of school and/or library book challenges. "No state banned more books than Florida in the most recent school year," noted Erin Davis and Jason Russell in Reason's January issue. "Over 40 percent of school book bans in the U.S. happened in Florida, though a slight majority of Florida school districts had no bans at all."

Florida Gov. Ron DeSantis—who can be both good and bad on educational freedom—"has spearheaded the efforts to keep inappropriate books away from kids," reports WUSF. But now even he seems to recognize that things have gone too far. DeSantis "recently Endorsed a House proposal to curb schoolbook removals and challenges," says WUSF.

The proposal: charge people $100 to challenge a book if they don't have kids in a school district and they've unsuccessfully challenged more than four books within that year.

"If you're somebody who doesn't have a kid in school and you're gonna object to 100 books, no, I don't think that that's appropriate," DeSantis said at a press conference earlier this month. "So I think the Legislature's interested in limiting the number of challenges you can do and maybe making it be contingent on whether you actually have kids in school or not."

Censorship-Adjacent

A step like the one Florida is considering could at least prevent the worst sorts of abuses of the system. But when the system itself is geared toward severely limiting what students can read, small steps won't really make a meaningful difference.

Of course, school and public libraries are far from the only places to get books. This leads some to hand-wave away strict limitations on them—Who cares when kids can just turn to Amazon? That's fair enough when you're considering young people with enough money to purchase the books they want and/or those whose parents have more liberal sensibilities.

It still means that for some young people, reading everything from some classic literature to modern novels with gay characters could be off-limits.

And that while most teens can watch pretty graphic movie and TV depictions of sex, or find pornography on their phones, more nuanced and age-appropriate depictions of navigating sexual relationships could be out of reach.

So the idea that "This isn't an outright ban, so who cares?" doesn't sit well with me.

Laws limiting what kinds of books can be stocked on library shelves aren't censorship, but they're censorship-adjacent. In that, they resemble many attempts to control communication and information these days, from measures dictating how social media companies must moderate content to website age-verification laws to bills allowing private lawsuits against digital companies that allegedly cause amorphous "harms."

The surest way to push through such measures is to say they're for the kids. But kids have First Amendment rights too—and even if they didn't, many attempts to limit material for minors will also limit that material for adults as well.

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