Idaho book censorship law bothers Ninth Circuit

Monique Merrill

(CN) — An Idaho law restricting what materials students can access in schools and libraries drew scrutiny at the Ninth Circuit on Monday as a group of schools urged the court to block the law.

“This statute imposes real burdens on the schools we represent, who are not intending in any way to use obscene materials and want only to use those materials that they’ve used year in and year out to educate their students,” said Kevin Trowel, attorney with the New York-based Free and Fair Litigation group.

In July 2024, Idaho enacted a law requiring schools and libraries to pull books and other materials it deemed “harmful” to minors. House Bill 710 allows the government and citizens to sue any school or library that doesn’t move restricted material into designated “adult-only” sections within 60 days of receiving a complaint.

A group of private schools, privately funded libraries, parents and schoolchildren sued the state in federal court weeks after the law took effect, arguing that the law infringes on their First Amendment rights.

In March, the lower court declined to block the law and dismissed all the plaintiffs for lack of standing except for the Northwest Association of Independent Schools and two of its member schools. U.S. District Judge Amanda Brailsford, a Joe Biden appointee, found that Idaho has “an interest in regulating minors’ access to obscene material.”

Before a three-judge panel of the Ninth Circuit, the schools argued that they simply want to use constitutionally protected materials in their curricula. Under the First Amendment, materials must be considered obscene in order for states to restrict their distribution.

“H.B. 710 denies plaintiffs’ parents and students the ability to pursue this goal free from the threat of litigation,” Trowel said.

The law’s definition of “sexual conduct” and “nudity” could allow anyone to sue one of the plaintiff schools for using the textbooks it has relied on in its science, humanities and health education courses. Another school argued it could be sued for having books that depict same-sex characters engaging in nonsexual activities, as the law’s definition of “sexual conduct” includes “any act of … homosexuality.”

U.S. Circuit Judge Holly Thomas, a Joe Biden appointee, asked about whether the law intended to restrict any depiction of homosexuality in nonsexual acts or not.

The schools told the court that it is unclear, because “homosexuality” is unlike the other acts defined under the “sexual conduct” section of the law.

“There’s no need to say homosexuality if homosexuality means homosexual sexual intercourse, because sexual intercourse is already included in the list,” Trowel said.

The law also suggests that individual descriptions or depictions within a larger work may be treated as obscene even when the larger work as a whole does not, maintained the schools, and it isn’t clear how schools and libraries should proceed if that is the case.

“Must they be removed from the work, pages torn out of books? Or does that in turn mean the whole work is treated as obscene because it contains an image that under this malformed Miller standard is treated as obscene?” Trowel posited.

In Miller v. California, the Supreme Court in 1973 held that states must consider whether a work has serious artistic, political, literary or scientific value when determining whether material is obscene.

The schools argue that neither Idaho nor the lower court satisfied this standard.

U.S. Circuit Judge Milan Smith, a George W. Bush appointee, asked if there was anything in Idaho’s legislative history that gave a hint into what motivated the change to allow parents and other citizens to become “instant constitutional lawyers.”

The schools argued that this bill isn’t the first time that Idaho has strayed from following the *Miller *standard, but that this is the first one that included a citizen enforcement provision.

Idaho disagreed, telling the court that the Legislature clearly intended to comply with the Supreme Court precedent and set a reasonable limit on its scope.

But Smith had a question about the scope and particularly how schools were meant to comply with the portion of the law that requires materials to be moved to adult-only areas.

“If there’s content that is obscene as to younger children, but not as to older teenagers, where does that content go?” Smith asked.

He noted that librarians would be forced to choose between restricting access to a book or risk getting sued, which he called a “pretty serious impact on the First Amendment rights of these folks.”

The state argued that such a question isn’t before the federal court, but that the statute doesn’t necessarily take such a strict position.

“I don’t see any reason to read that as saying that something that is obscene only for 10-year-olds needs to be removed to an area that’s only for adults,” said Alan Hurst with the Idaho Attorney General’s Office.

The justices weren’t convinced the law would function that way.

“A lot of young adult novels that may actually have sexual themes or may have nudity and fall strictly within the definition of harmful to minors would then be swept up, despite the fact that it has serious value,” said U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama appointee.

Idaho argued that there isn’t any evidence of that happening, nor any lawsuits filed under the law at all at this point.

“I don’t see how the court can possibly say that the illegitimate applications, if there are any, substantially outweigh the legitimate applications, of which we know there are billions of gigabytes online of things that this can legally apply to,” Hurst said.

The Ninth Circuit did not indicate when it would rule.