Utah’s Book Banning Law Has a Serious Constitutional Problem*
Students headed back to public schools for the 2024–25 school year have reduced access to the body of information about the lived experiences of all different people and to that broader range of perspectives. Following a national trend, the Utah Legislature and Governor have taken expansive measures to limit the body of information available to public school students by inserting their judgment on what books are worthy of reading and what messages are worthy of receiving. They have done so in direct violation of the First Amendment.
The book ban was backed by Utah Parents United, a conservative parents’ group, intent on reducing access to ideas they disfavor, particularly those that discuss the lived experiences of LGBTQ+ people, people of color, and other marginalized people. As you might expect and as was the intent, Utah’s “[s]chool librarians and teachers saw a huge spike in review requests after the law was passed, mainly for books that dealt with racial justice, gender ideology, and LGBTQ representation.” The New Republic, Utah School District Bans the Bible for “Vulgarity” and “Violence”; see also The Book of Mormon (Not the Musical) May Fall Prey to Utah’s Censorship Law (by the author).
As of August 2, 2024, at least 13 books were permanently banned from all public school libraries in Utah under a process that directly violates the First Amendment. Scores of additional books were banned from the libraries in other school districts throughout Utah. More book bans are on their way. Many parents and students who feel the legislation itself and the selection of books the censors have successfully targeted — including members of targeted classes of minorities and marginalized people — interpret this as further marginalization and mockery of them, their status, their right and ability to be recognized, heard, and understood, and the right and opportunity to open and expand their minds and those of others.
At the time the Legislature and Governor created the book ban law, they were on express notice from the Utah Attorney General that federal law and the United States Constitution prohibited this nonsense. Much to the chagrin of the Legislature and Governor and their express efforts to avoid application of federal law in the State, the First Amendment to the U.S. Constitution still applies in Utah through the Fourteenth Amendment. First Amendment jurisprudence is clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” which has been the law for more than a century. The United States Supreme Court has long recognized that “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools,” which serve as nurseries of democracy. “[T]he Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.”
This is not to suggest the First Amendment prohibits lawmakers from censoring information from public school libraries or public displays. In Miller v. California decided in 1973, the United States Supreme Court enunciated the process lawmakers must follow in making censorship decisions based on content. That three-part test for determining if material is obscene and subject to government restrictions requires prospective censors to consider the work “as a whole,” as follows:
· Would the average person find the material appeals to the prurient interest, applying contemporary community standards?
· Does the material describe sexual conduct in a patently offensive way?
· Does the material lack any serious literary, artistic, political, or scientific value?
The court ruled that “obscene” material must be without serious literary, artistic, political, or scientific value to be unprotected by the First Amendment.
Not all content which may be appropriate for adults is appropriate for minors. Assessing the propriety of content for minors, “as a whole” includes considering the age of the audience in evaluating the serious literary, artistic, political, or scientific value. For a large body of content, however, Utah’s book banning law categorically eliminates the third prong by adopting a definition of “pornographic or indecent” from the Utah Criminal Code. The Legislature created an “objective bright line” test stating that certain speech, depictions, or descriptions related to sex and sexuality, as a matter of black letter law, have “no serious value for minors.” The Legislature and Governor have concluded such content fails the third prong without consideration of the work “as a whole.” For content that falls within such depictions or descriptions, the lawmaker or delegee is prohibited from considering the work’s serious literary, artistic, political, or scientific value for minors, taking into consideration the ages of the minors or who could be exposed to the material.
Seventeen-year-olds and seven-year-olds are treated the same under the bright line test. And eighteen-year-olds in their senior year of high school, no longer minors, are treated the same as eight-year-olds.
The Attorney General provided guidance to school districts — delegee censors — in a June 1, 2022 Memorandum. In a surprising moment of candor, he euphemistically stated:
“Section 1227(2)(c) states conclusively that subsections . . . of 1227(1)(a) ‘ha[ve] no serious value for minors.’
“Under this interpretation, if a book contains any of the material listed in [the] subsections, [the book banning law] requires the book to be removed from the school library. Such an interpretation creates categorical exclusions or a ‘bright line’ rule. . . .
“[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. . . .
“Failure to consider library materials ‘as a whole’ may present risk of conflict with federal law.”
(Emphasis added.)
Despite this guidance from the Attorney General, in the 2024 Session the Legislature doubled down, creating a specific, defined category that confirmed the legislative intent altogether to eliminate the third prong under Miller for certain content, the First Amendment be damned.
My guess, and it’s only a guess, is that kids who are looking for “sex,” as opposed to lived experiences in literature with which they may identify or wish to learn and understand, have more immediate and satisfying access with the smart phones their parents provide them than going to the public school library. But when I was a kid, if someone drew a line or created a taboo, that only encouraged me to investigate.
Parenthetically, my brother’s published novels, Dancing Naked (for which he received the publication award from the Utah Arts Council) and The Contortionists, and his novels awaiting publication, have serious literary and artistic value. They easily qualify for banning from Utah public school libraries under the Legislature’s “objective sensitive materials” test.
R.VanWagoner https://medium.com/@richardvanwagoner publishes. https://richardvanwagoner.medium.com/subscribe
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists is not, however, for the faint of heart.
**Richard J Van Wagoner is my father. His list of honors, awards, and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Van Wagoner, a professional photographer, photographed more than 500 pieces of my father’s work. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner are hers.