8th Circuit Says Iowa Can Keep Its LGBTQ-Targeting Book Ban

Free Speech

from the reviving-irrational-hate dept

In one of several ongoing campaigns of hate in our country, the Iowa legislature passed a law that not only changed what schools could teach, but what students could be allowed to read.

First, let’s get to the changes to the state’s health curriculum, which is nothing less than the erasure of HIV/AIDS sufferers.

The health curriculum shall include the characteristics of communicable diseases including acquired immune deficiency syndrome.

[…]

The health curriculum shall include age-appropriate and research-based information regarding the characteristics of sexually transmitted diseases, including HPV and the availability of a vaccine to prevent HPV, and acquired immune deficiency syndrome.

That’s what’s being deleted from school health curriculum — a state-enforced vanishing of information about a communicable disease that has contributed to hundreds of thousands of deaths across the nation and tens of millions around the world. The state legislature believes students should have to seek out information about this disease on their own, outside of school rooms, and of their own initiative.

This is nothing more than the government expressing a disdain for anyone non-heterosexual. The state pretends this is about giving parents more control over what their children are taught, but the law only allows the state to decide what children are taught. There’s nothing in the law that allows parents to decide they want their children to be taught about HIV/AIDS. There’s only the removal of that particular part of the curriculum.

The other part of the law governs the content of books carried by school libraries. It’s more of the same, with the law targeting “depictions of sex acts” in books. Of course, the law contains an exception for “religious texts,” which (also of course) only means the Bible and its depictions of incest, rape, and sodomy.

The law was immediately challenged by pretty much every rights group and book publisher late last year. One lawsuit was spearheaded by the ACLU and a ton of parents and students rights groups. The second lawsuit was headed up by book publisher Penguin, along with a long list of authors and other, smaller publishers. That lawsuit also notably featured a powerhouse in the educational arena: the Iowa State Education Association, the union representing most of the state’s educators.

Less than a month later, these lawsuits managed to secure an injunction forbidding the law from being enforced. The federal court handling the lawsuits saw nothing remotely redeemable about the new law and made its point forcefully in its decision:

The law is incredibly broad and has resulted in the removal of hundreds of books from school libraries, including, among others, nonfiction history books, classic works of fiction, Pulitzer Prize winning contemporary novels, books that regularly appear on Advanced Placement exams, and even books designed to help students avoid being victimized by sexual assault. The sweeping restrictions in Senate File 496 are unlikely to satisfy the First Amendment under any standard of scrutiny and thus may not be enforced while the case is pending. Indeed, the Court has been unable to locate a single case upholding the constitutionality of a school library restriction even remotely similar to Senate File 496.

As if that wasn’t enough already, the federal court added this while discussing the restrictions on in-class instruction:

The law forbids programs, promotion, and instruction to students in those grades relating to “gender identity” and “sexual orientation,” but those terms are defined a neutral way that makes no distinction between cisgender or transgender identity or gay or straight relationships. Meaning: on its face, the law forbids any programs, promotion, or instruction recognizing that anyone is male or female or in a relationship of any sort (gay or straight). The statute is therefore content-neutral but so wildly overbroad that every school district and elementary school teacher in the State has likely been violating it since the day the school year started. This renders the statute void for vagueness under the due process clause of the Fourteenth Amendment because the State will have unfettered discretion to decide when to enforce it and against whom, thus making it all but impossible for a reasonable person to know what will and will not lead to punishment.

That (mostly) killed off the new law. The only part that remained was the part of the law that required administrators to notify parents if their students requested “accommodations relating to gender identity,” including the use of preferred pronouns. And the only reason that part of the law survived was that no plaintiff could plausibly claim to be harmed (potentially or otherwise) by this particular mandate.

You’d think that decision would have stood. It was clear and forceful, and detailed everywhere the law violated Constitutional rights. But the Eight Circuit Appeals Court says otherwise. Its decision [PDF] is extremely short and barely interacts with the lower court’s decision, other than to say its initial reading of the law was incorrect.

It does agree some of the plaintiffs can still pursue their First Amendment claims (albeit not exactly in the way they’ve pursued them here) because curation of school library content by librarians and schools cannot truly be considered “government speech” — something that does not implicate the First Amendment.

[I]t is doubtful that the public would view the placement and removal of books in public school libraries as the government speaking. Take routine examples of historic tomes on political science. A well-appointed school library could include copies of Plato’s The Republic, Machiavelli’s The Prince, Thomas Hobbes’ Leviathan, Karl Marx and Freidrich Engels’ Das Kapital, Adolph Hitler’s Mein Kampf, and Alexis de Tocqueville’s Democracy in America. As Plaintiffs noted, if placing these books on the shelf of public school libraries constitutes government speech, the State “is babbling prodigiously and incoherently.”

But granting that part of the argument to the plaintiffs (and only some of the plaintiffs) isn’t enough to keep the injunction intact. It says the lower court applied the wrong standard, replacing what the plaintiffs were actually engaging in (a facial challenge to the law) with something a bit more subjective.

We note that the district court concluded that the Library Provision is a viewpoint-neutral, content-based, age-appropriate restriction on the content of public school libraries, and we agree. The purpose of public school libraries is to advance the school curriculum—that is, to facilitate the pedagogical mission of the school, which may involve some limitation of expression.

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Given the pedagogical mission and the policy making authority possessed by Iowa, it is important in conducting a review and analysis to bear in mind that Iowa is not required to tolerate speech that undermines or is inconsistent with its central mission of educating Iowa children.

Meanwhile, the district court insisted the Instruction Section could only be interpreted in an “absurd” manner, an interpretation not shared by the defendants and even some of the Plaintiffs. The district court imparted its interpretation without referencing several canons of construction that may have revealed a narrower, reasonable interpretation, such as the canons of constitutional-avoidance, noscitur a sociis, and Iowa’s admonition to interpret its laws reasonably and in a manner feasible of execution, Iowa Code § 4.4(3)-(4). Other interpretive methods should be discussed and exhausted before concluding the only textual interpretation is an absurd one because the resulting interpretation inevitably bears on whether the law’s applications are constitutional or not.

This means the state can go back to banning books from school libraries while the First Amendment challenges are more fully-developed in the lower court. But no facial challenges to the law survive. Anything that has a chance of moving forward will have to use the “as applied” standard, which means book bans can be challenged on a case-by-case basis, and litigants will have to do some dividing before they can conquer. And they’ll have to decide whether any single challenge is worth pursuing since it seems clear the Appeals Court won’t be handing out injunctions for anything broader than the injury particular to each individual plaintiff.

And that sucks. It means a lot more time and money will need to be spent to protect Iowans from their own government. All the state has to do is continue to tell students they can’t read this or they can’t learn about that.

Filed Under: 1st amendment, 8th circuit appeals court, book bans, censorship, iowa, lawsuit, libraries