The Far-Reaching Consequences of HB374: Sensitive Materials in Schools

The Utah Library Association (ULA) was recently contacted by a community member who has publicly expressed concern about the so-called “continuous problem of ‘porn’ in books within school libraries.” In an email to ULA, this person suggested that in light of the passage of the Sensitive Materials in Schools Law (HB374), the “Miller Test” does not apply to books in school libraries, and we should therefore revise or recall our statement on the removal of 52 books at the Alpine School District.

ULA stands behind our statement and will continue to oppose book bans that violate local school policies, state law, and established federal first amendment law. Neither local school districts nor our state legislature has the power to override constitutional law, or permit the removal of materials without applying the Miller Test and evaluating the materials “taken as a whole” for serious literary, artistic, political, or scientific value. (AKA the “SLAPS” standard.) Abiding by these long-established legal standards, while allowing professional librarians to build collections in accordance with local policies, will ensure that all Utah students will have the opportunity to read and learn from the best age-appropriate books possible.

The request to retract our previous statement on the Alpine School District’s decision reflects the good deal of misunderstanding and misinformation that is being shared regarding HB374. This misunderstanding has been exacerbated by the revocation of a clear guidance memo about the law from the Utah Attorney General’s Office, followed by it’s replacement with a new guidance memo written in such a way as to encourage cherry-picking of excerpts used by those who want to justify removing materials from school libraries in violation of first amendment law. In fact, the original May 4, 2022 guidance memo was crystal clear on the legal requirement to evaluate materials “as a whole.” Even the second memo, which is clearly written to be more favorable towards the removal of books, acknowledges that failure to apply the Miller Test opens up the school district to first amendment challenges in federal court.

AMERICAN ATTITUDES TOWARD BOOK BANNING: MAJORITY OPPOSITION TO CENSORSHIP

Before we get into the law itself, it is helpful to contextualize our analysis by looking at American public opinion regarding book banning as reflected in two major national polls: The American Family Survey (BYU/Deseret News), and Voter Perceptions of Book Bans the United States (EveryLibrary). According to the Deseret News article on the American Family survey, “just 12% of Americans agree that books should be removed from libraries if a parent objects. Moreover… only 16% believe public school libraries include inappropriate books on their shelves.” One of the lead investigators of the survey, Jeremy C. Pope, professor of political science at Brigham Young University, summarized the data saying, “The public really doesn’t like book banning.”

“The public really doesn’t like book banning” – Jeremy C. Pope, professor of political science at Brigham Young University and lead investigator, American Family Survey 2022 (BYU/Deseret News)

The EveryLibrary poll found that only 8% of voters believe “there are many books that are inappropriate and should be banned.” The poll also found that librarians are held in high regard and voters view librarians twice as favorably as politicians and political parties. In short, the poll revealed that voters want to make their own choices about what to read; that most voters oppose banning books; that voters oppose legislation that bans books, and that voters are also likely to consider their opposition to book banning when deciding who to vote for at the ballot box.

A recent story by KUTV suggests that Utahns are no more fond of book banning than the most Americans, and that there is only a small fringe of activists in Utah who are behind the vast majority of book challenges. KUTV’s investigation discovered that “less than three dozen people, most of them affiliated with one Utah parents group, are behind the [hundreds of] complaints” in an effort to “restrict certain books so your children cannot read them in school.” In Granite School District for example, one married couple is responsible for 199 out of 205 challenges. In other words, the vast majority of Americans and Utahns do not support or instigate book bans.

In Granite School District one married couple is responsible for 199 out of 205 challenges. The vast majority of Americans and Utahns do not support or instigate book bans.

HB374 ONLY POINTS TO EXISTING STATE LAWS (SO WHAT’S THE PROBLEM?)

When HB374 was first filed it had many problematic elements and it was strongly opposed by many organizations including ULA, UEA, and UELMA. After many revisions, the final version, while still based on a faulty premise that there are obscene materials on school shelves, did nothing more than point to existing state definitions of obscenity and “harmful to minors.” These definitions basically matched the federal definitions because while states can protect more rights than the federal government, they cannot protect fewer rights. Thus, the SLAPS standard of the Miller Test is a minimum floor for all state obscenity and harmful to minors laws, which is why all states have laws that closely mirror the SLAPS language.

The final version of HB374 was innocuous enough that UEA and ULA withdrew our objections to the bill. The issuance of the May 4 AG guidance memo confirmed our belief that the new law, while perhaps offering a symbolic win for those seeking to ban books, did not fundamentally change the high legal bar required for government entities in proving that materials are obscene and therefore not entitled to first amendment protection.

So if the law didn’t change anything, why are we seeing so many books being banned or restricted in our school libraries? That brings us to the second AG Memo.

THE JUNE 1st AG MEMO: LESS CLARITY AND GREATER JEOPARDY FOR LEAs

Nearly one month after the issuance of the May 4th AG guidance memo on HB374, the Attorney General took the seemingly unprecedented step of rescinding the memo and issuing a new one on June 1st. This unusual action was reportedly taken in response to complaints from state legislators who were unhappy that the May 4th guidance stated clearly that HB374 in no way superseded existing state and federal obscenity laws. The new memo, however, was much less clear. It provided a number of sentences that when taken out of context could be read as allowing or even requiring the removal of materials under HB374.

The perspective taken by the AG in the June 1 memo was that, according to HB374, the definition of “indecent public displays” in Utah Code 76-10-1227 (1)(a)(i-iii) should be applied not only to public displays and performances, but to library books. This interpretation is problematic for a number of reasons — reasons that the memo actually points out. Nevertheless, the way the memo is written permits those who wish to ban books to take selected excerpts out of context and use them to justify aggressively pulling books from library shelves. These cherry-picked selections are separated from other sections of the memo which make clear that this “bright line” application of the “indecent public display” definition in 76-10-1227 does not pass constitutional muster.

Other parts of the memo that caution against any “bright line” reliance on the obscenity test in section 1227 (a standard much lower than the SLAPS standard of the Miller Test), include these statements:

“Section 1227 is generally meant to apply to indecent public displays. The First Amendment’s obscenity analysis for public displays may differ from its obscenity analysis for library materials.”
“A cardinal rule of statutory interpretation is that when a statute is susceptible to two plausible interpretations, it should be interpreted to avoid the constitutional conflict.”

A cardinal rule of statutory interpretation is that when a statute is susceptible to two plausible interpretations, it should be interpreted to avoid the constitutional conflict.

In spite of some legislators’ and school board members’ stated opinions that the “bright line” interpretation requires them to pull books from shelves, the June 1 memo specifically allows for LEAs (“local educational authorities” or school districts) to conduct an analysis as to any overall value of the materials clearly stating that engaging in such an analysis “significantly increases the likelihood of overcoming a legal challenge to the removal of the book.” Indeed, even sections of the memo that are written to suggest that schools can solely rely on the “public displays” obscenity definition in 1227 make sure to leaven those suggestions with cautions such as these:

“For example, removing a school library book because it contains a sole description or depiction of an act of “sexual intercourse” or “fondling” (or other forbidden depiction specified under Section 1227) may be subject to increased risk of legal challenge if the book would not otherwise be removed under Sections 1201 or 1203, or 1227 (iv), when taken as a whole.”
“[I]f the material is specifically listed in subsections (i), (ii), and (iii), the decision-maker may consider independently analyzing whether such material has serious value for minors under I227(2)(b). And, to further validate the removal decision under federal law, decision-makers may consider assessing the materials as a whole” when analyzing materials under Section 1227.”
“A federal court might plausibly read Section 1227(2)(c) not as a bright line rule, but as a rebuttable presumption. That is, descriptions or depictions of things set forth in I227(I)(a)(i), (ii), and (iii) presumably have no serious value for minors, unless the school proactively determines that such materials have serious literary, artistic, political, or scientific value. “
“Even when removal of library books meets strict compliance with HB374 and related state statutes, a legal challenge will invite application of federal First Amendment jurisprudence, a body of cases which have not favored bright line rules in obscenity cases.”

It’s not difficult to understand why a court would have concerns about using an obscenity definition that applies to public displays and performances to justify the banning of library books. We have different standards of obscenity for public displays and performances than we do for books because the private experience of reading a scene that contains sexual content is fundamentally different than putting on a public performance of live sex, or putting a billboard up on I-15 showing people engaged in sexual activity. In other words, we all understand that reading about people engaging in sexual activity on the front lawn is protected, but engaging in sexual activity in public is NOT protected by the first amendment.

THE IMPACT AND AFTERMATH OF HB374: BANNED BOOKS, SOFT CENSORSHIP, LIBRARIANS UNDER ATTACK

Before diving deeper into a discussion of the impact of HB374 and the second AG memo it is worth looking a little more closely at the use of the term “bright line” rule. Many legislators, school board members, and supporters of book banning are regularly using the term “bright line” rule when referring to the obscenity definition of 76-10-I227(I)(a)(i-iii). In their usage, the “bright line” means that any books, regardless of a Miller Test analysis, have no value for minors and MUST be pulled from the shelves if there is even one sentence that violates the 1227 (I)(a)(i-iii) “public display” standard of obscenity. As we’ve already seen, however, other parts of the memo make clear that following this interpretation is likely to put schools at odds with the first amendment. This creates, in essence, a no-win situation for schools who must now decide whether they will violate state law or federal law. Of course good state law, or any official guidance/interpretation thereof, would align with federal law and not create a constitutional conflict. Furthermore, a true “bright line” rule doesn’t have plausible competing interpretations. A true “bright line” rule provides crystal clarity regarding what is legal and what is illegal. One can easily discern the lawful from the unlawful and thus choose to stay on the right side of the line and be protected from any threat of civil or criminal penalties. Yet, school district leaders are clear that the AG memo has created a blurry gray line, or worse. They are now in jeopardy whichever side of the line they are on.

A true “bright line” rule provides crystal clarity regarding what is legal and what is illegal. One can easily discern the lawful from the unlawful and thus choose to stay on the right side of the line and be protected from any threat of civil or criminal penalties. Yet, school district leaders are clear that the AG memo has created a blurry gray line, or worse. They are now in jeopardy whichever side of the line they are on.

Michael Curtis, Managing Associate General Counsel, Office of Legislative Research and General Counsel, clearly established the untenable predicament the AG memo’s “bright line” interpretation has created for LEAs when he said in the October Interim Education Committee meeting, “What lawsuit does the LEA want to defend, because that’s kind of what they are choosing now.” Later in the meeting Curtis reiterated this point saying, “The dynamic that LEAs are in right now is sort of pick a lawsuit to defend.” Of course, “picking a lawsuit to defend” is literally the opposite effect of a “bright line” rule, and the use of the term is rather Orwellien. [See video of committee meeting, timestamps 1:13:37 and 1:14:10 for Curtis’ comments]

One of the impacts of HB374 and the second AG memo has therefore been to put LEAs and taxpayers at legal and financial risk of unnecessary litigation; a risk that flows directly from a clearly problematic interpretation of the law. Beyond that, the memo has emboldened (if not encouraged) a number of school districts to write and execute policies that err on the side of compliance with state law over compliance with first amendment law. Some districts, like Canyons, have tried to split the difference by temporarily pulling any books off the shelf if they are challenged for having “sensitive” content under 76-10-1227, while still affording books a fuller evaluation process that involves a committee applying the full Miller Test analysis. However, the pulling of any book that is challenged, even if temporarily, is still a first amendment violation. And the fact that any parent can make up to 10 sensitive materials challenges per year, and that each challenge requires the librarian to fully read the book at an estimated time of 4-5 hours per book, still leads to a situation where books are off the shelf for long periods of time even if they are eventually deemed to be of value. As bad as this is, other school districts refuse to even evaluate a book for SLAPS value if there is any content in the book that violates 76-10-1227.

Which brings us to the next significant impact of HB374: it is requiring inordinate amounts of time from school librarians, as well as administrators, and school board members. Coming back to the Canyons example, one parent making 10 sensitive materials challenges could take up 40-50 hours of a librarian’s time just reading the books. That doesn’t even include the time it takes to form committees for the deeper evaluations that are required in each challenge, and all of the administrative time involved in documenting and reporting on these activities. And of course every hour spent dealing with a challenge is an hour not spent helping students improve their literacy, expand their vocabulary, develop critical thinking skills, learn digital citizenship, how to safely navigate the Internet, or any of the other vital ways in which school librarians prepare Utah students for a lifetime of success and prosperity.

The Comic Book Legal Defense Fund, reporting on the situation in Utah, writes that, “Lawsuits notwithstanding, the bill has already impacted resources in the school districts. One district said the recent challenges have already cost 500 hours of labor and $20,000 of funds.”

“Lawsuits notwithstanding, the bill [HB374] has already impacted resources in the school districts. One district said the recent challenges have already cost 500 hours of labor and $20,000 of funds.” – Comic Book Legal Defense Fund (CBLDF)

It was eye-opening to hear Dr. Mark Clement, President of the Alpine School Board, testify at the November, 2022 Interim Education Committee meeting on the impact of HB374. He said that prior to the passage of the law, Alpine had a process that worked well. He noted that Alpine’s school librarians are trained professionals who support student learning by recommending books to them based on their unique values and needs. Parents always had the right and the ability to restrict access to books for their own children by contacting librarians. Dr. Clement went on to note that since the passage of HB374, Alpine has had had to deal with police showing up at the school library because a parent complained of porn in the library. He shared that the experience of having police show up was frightening to school librarians and, not surprisingly, made them less effective. At one high school in the Alpine district, English teachers brought books to the principal’s office and left them there saying that they would not be teaching them any more under threat of prosecution. In short, Clement testified that the bill has been largely negative; that teachers and librarians are labeled as untrustworthy or pushing porn when they are just trying to help children.

The final, but highly significant, impact of HB374? The mental and emotional toll it is taking on teachers and librarians as they simply try to do their jobs. Many librarians are experiencing chronic stress as they are being attacked in public meetings and on social media, sometimes by name. Given the recent attack on Paul Pelosi in the privacy of his own home, the hateful political rhetoric spewing forth daily on the national level, and, more locally, police reports being filed, and comments by a Utah State School Board member suggesting that death is the appropriate punishment for people who put “soul destroying materials” in the hands of kids, it is understandable that librarians and teachers have legitimate fears for their safety and the safety of their families. No one, least of all those who devote their lives to the betterment of children and society, deserve to be targeted and to work under such hostile conditions.

Many librarians are experiencing chronic stress as they are being attacked in public meetings and on social media, sometimes by name. Given the recent attack on Paul Pelosi in the privacy of his own home and comments by a Utah State School Board member suggesting that death is the appropriate punishment for people who put “soul destroying materials” in the hands of kids, it is understandable that librarians and teachers have legitimate fears for their safety and the safety of their families.

WHAT’S NEXT AND WHAT CAN WE DO?

Based on comments by legislators during Interim Education Committee meetings, as well as comments on social media, we expect to see legislation in the upcoming session that attempts to:

Restrict collection development policies in school libraries, possibly requiring parental approval for new items in the collection. (Note that Davis County School District is already doing this.)
Require challenged books to be pulled from the shelf immediately, rather than staying on the shelf while the materials are being reviewed. (Note that Canyons and possibly other Districts are already doing this.)
Be more aggressive in bringing criminal or civil charges against librarians and teachers. (Note there is already an uptick nationwide of police involvement and legislative attempts to expose librarians to criminal and civil penalties.)
Institute the requirement of a book rating system created by pro-censorship political activists.

There are, of course, legitimate policy goals in protecting children from harm, and as librarians we know that many of the books that some people claim are harmful have in fact been of great value to many people. We know that books help people protect themselves and their family members by helping them recognize, address, and/or prevent abusive situations. These books have also helped people feel a sense of self-worth, feel less alone, and otherwise help them deal with depression or suicidal ideation. Certainly many librarians have entered the profession due to our direct experience of the life-saving and life-enhancing power of literature, coupled with the professional, non-judgmental attention given by a caring librarian.

There are legitimate policy goals in protecting children from harm, and as librarians we know that many of the books that some people claim are harmful have in fact been of great value to many people. We know that books help people protect themselves and their family members by helping them recognize, address, and/or prevent abusive situations.

Because we recognize the very real policy goals of advancing the protection and well-being of all children, ULA will continue to work proactively and in good faith with legislators to address all legitimate concerns. In coalition with organizational partners, we will seek to advance and shape policy that supports student success, and preserves and protects the professional input and judgment of librarians in an educational setting. Likewise, we will work to preserve and protect the rights of all parents and students, while opposing any attempts to use the power of the state and overly restrictive or unconstitutional government regulations to impose the personal opinions of the few into public education, thereby usurping student’s rights to an excellent education, and the rights of all parents to parent and guide their own children’s learning according their family’s values and beliefs.